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Whether the court can quash prosecution if the complainant fails to mention his caste or caste of accused in FIR or in Complaint in the case of SC & ST Atrocities Act?

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 275 OF 2013

1. DAGADU GORAKH PATIL
age 59 years, Occ. Service.

2. ATUL JAYPRAKASH SURYAWANSHI,
age 33 yrs, Occ. Service,Both r/o Khaper Tq. Akkalkuwa,

Dist. Nandurbar. Petitioners ig (orig. accused )

VERSUS

SHIVAJI JETHYA WALVI
age 66 yrs, Occ. Agri,
R/o both Rajmohi, Tq. Akkalkuwa,Dist. Nandurbar. Respondent.

Mr. S.U. Choudhary h/f Smt. V.S. Chaudhari

Mr. A.R.Kale h/f Mr.S.V. Natu advocate for respondent.

CORAM : ABHAY M. THIPSAY, J.
Dated: December 20, 2013 …

ORAL JUDGMENT :-

1. Rule. By consent, Rule made returnable forthwith.

Learned counsel waives service. By consent, heard finally.

2. The petitioners are the accused in RCC No.7/2012 filed by the respondent herein (for the sake of convenience and clarity the respondent hereinafter be referred to as ‘the complainant’) alleging commission of various offences such as forgery, cheating, including the offence punishable under section 3 (1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC and ST Act’). The learned Magistrate, after examining the complainant and his witnesses on oath, issued process requiring the petitioners to appear and to answer to the charge of an offence punishable u/s 3 (1) (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Being aggrieved by the said order, the petitioners approached the Court of Sessions by filing an application for revision. The learned Additional Sessions Judge, who heard the revision, came to the conclusion that the order passed by the Magistrate was proper and legal. Holding so, he dismissed the Revision Application. It is under these circumstances that the petitioners have approached this Court by invoking its Constitutional jurisdiction, and praying that the order issuing process and prosecution of the petitioners vide the said case, be quashed.

3. Three contentions are raised by the learned counsel for the petitioners in support of the petition. The first contention advanced by him is that, as the complaint does not mention either the caste of the accused persons, or that of the complainant, process could not have been issued. He sought to place reliance on some authoritative pronouncements wherein such a view was taken. However, the learned counsel for the complainant has drawn my attention to the Full Bench decision rendered by this Court in Pushpa Vijay Bonde Vs. State of Maharashtra reported in 2009 (2) Bom.C.R.(Cri). 32. He has also drawn my attention to a decision delivered by the Supreme Court of India in Ashabai Machindra Adhagale Vs. State of Maharashtra reported in 2009 (1) Bom.C.R.(Cri) 779 (S.C.). A reading of these two pronouncements leaves no manner doubt that, it would not be essential for a complainant to mention, either his own caste or that of the accused, in the complaint or in the First Information Report and that; on the ground that caste is not so mentioned, the proceedings cannot be quashed.

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4. The second contention advanced by the learned counsel for the petitioners is that, the alleged incident has not taken place in ‘public view’ and therefore, the ingredients of the offence punishable u/s 3 (1) (x) of the SC and ST Act are not attracted. I have examined this aspect of the matter. In the complaint, there is a specific averment that the incident has taken place in presence of all the employees and students who were present at the place where the offences allegedly took place. The basis for claiming that the incident has not taken place in ‘public view’ is that, one of the witnesses of the complainant who was examined before Magistrate before issuance of process has given a version which is conflicting with the version given in the complaint. It is also submitted that there is some vagueness in the statement of the complainant and witnesses recorded by the Magistrate before issuing process on this aspect viz : whether the incident has taken place in public view. I do not think that there is a case for quashing the complaint on the ground that it does not disclose an essential ingredient of the alleged offence. Even assuming for the sake of arguments that there is some ambiguity on this aspect, when the complainant categorically states that the incident took place in presence of the members of the staff and students, it would not be possible to discard such specific averment in the complaint on the basis that, the statements recorded by the Magistrate before issuance of the process do not support this aspect. This would necessarily be a matter to be decided on the basis of evidence as may be adduced before the Magistrate during the inquiry and the subsequent trial, if any.

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5. The third contention advanced by the learned counsel for the petitioner is that, the complainant cannot be believed because of the delay in lodging the same. It is submitted that the alleged incident has taken place on 25.11.2011, but the complaint before the Magistrate came to be lodged on 11.1.2012. It is submitted that therefore, the version in the complaint cannot be believed.

6. Undoubtedly, delay in lodging the complaint would be a relevant aspect of the matter in judging the truth of the allegations. However, I am unable to hold that this would be conclusive. This again would be a matter to be decided in the course of the inquiry and trial.

7. It is true that there are some features of the matter which would create a doubt about the truth of the version in the complaint. It is also significant that the complaint was for other offences such as forgery, cheating, conspiracy etc., with respect to which offences no process has been issued. However, this does not seem to be a case where the proceedings can be quashed on the ground that no case for proceeding against the accused is made out. Since the case would be dealt with as per the procedure prescribed for trial of warrant cases, the petitioners are bound to get proper and sufficient opportunity to cross examine the complainant and his witnesses, even before a charge is framed. This is a matter which needs to be decided on the basis of evidence as may be adduced.

8. The learned counsel for the petitioners referred to a decision rendered by a learned Single Judge of this Court in case of Suryakanta Ramesh Ajmera (Dr.) Vs. State of Maharashtra and others reported in 2011 (1) Bom.C.R. (Cri.) 625. Though in the said decision, prosecution of the petitioner before the High Court was quashed on the ground that incident alleged therein could not be said to have taken place in ‘public view’, it is clear that the decision is given on the basis of the facts of that case, and does not lay down any legal principle. My attention was also drawn by the learned counsel for the petitioners to a decision rendered by a learned Single Judge of this Court in case of Sitaram Mahadu Dhadve Vs. State of Maharashtra and others reported in 2012 (2) Bom.C.R. (Cri.) 785, to show that delay in lodging the complaint can be fatal. In that case, the Trial court had acquitted the accused by doubting the version of the first informant, and one of the grounds for doubting the same was the delay in lodging a report. When the matter was brought to the High Court by way of revision, the High Court found nothing wrong in the view taken by the Trial Court. This judgment cannot be cited as an authority for the proposition that when there is a delayed filing of a complaint or FIR, prosecution cannot be initiated.

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9. No case for quashing the prosecution of the petitioners in exercise of the Writ Jurisdiction is made out.

10. Petition is dismissed. Rule is discharged.

( ABHAY M. THIPSAY ) JUDGE

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