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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH NAGPUR
Criminal Application No. 4102/2006
1. Haridas s/o Kisanrao Kharbadkar,
aged 54 years, Occ. Agriculturist.
2. Prakash s/o Manohar Khokle,
aged 27 years, Occ. Agriculturist.
3. Jagganath @ Babarao s/o Onkarrao
Khokle, aged 43 years, Occ. Agriculturist.
4. Dilip s/o Anandrao Tidke,
aged 40 years, Occ. Agriculturist.
5. Najukrao s/o Uttamrao Modak,
aged 48 years, Occ. Agriculturist.
6. Vinod s/o Rambhau Khokle,
aged 39 years, Occ. Agriculturist.
All sr. no. 1 to 6 above resident of
Sangvi, Tq. Murtijapur, Dist. Akola.
.. APPLICANTS
.. Versus ..
The State of Maharashtra,
thr. Police Station Officer, Murtijapur,
Police Station, Murtijapur, Dist. Akola.
..NON APPLICANT
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None for applicants, though served.
Mr. V. A. Thakare, A.P.P. for non applicant.
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CORAM:- S. S. SHINDE, J.
DATED :- 30th NOVEMBER, 2009
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JUDGMENT
1. When the matter is called out for hearing,
none appeared for the applicants. This matter was listed
for final hearing on 13.11.2009. When the matter was
called out, none appeared for the applicant. To give one
more opportunity to the counsel appearing for the
applicants to represent and argue on behalf of the
applicants, the matter was adjourned today for final
hearing at 2.30 p.m. Even today, none appears for the
applicant. This Court, on 13.11.2009 has made it clear
that in case none appears for the applicant on the
adjourned date i.e. today, this Court will proceed to
decide the application on its own merits and accordingly
the matter is taken up for final hearing.
2. Brief facts of the case are as under:-
The applicants herein have been charge-
sheeted under Section 147, 148, 149, 324, 427 of the
Indian Penal Code and also under Section 3 (1) (ii) of the
Scheduled Castes and Scheduled Tribes (Prevention of
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Atrocities) Act, 1989 (hereinafter referred to as “the Act”).
On the basis of report lodged by one Shantabai Anandrao
Khandekar on 06.11.2004, the applicants were summoned
made to appear before the trial Court. They appeared
before the trial Court and the case came to be fixed for
framing of charge.
3. The applicants, on the date of framing of
charge, moved an application before 1st Ad hoc Additional
Sessions Judge, Akola under Section 237 of the Code of
Criminal Procedure 1973 for discharge of the accused
persons i.e. the applicants, who were charge-sheeted
under Section 3 of the Act. It was the contention of the
applicants that the alleged offence cannot be constituted
against accused person because in the report, there are
no specifications regarding what abuses are given or by
whom they are given. It was further contention of the
applicants in the said application that if there is no
mention of caste in the First Information Report,
investigation conducted on basis of said report cannot be
entertained. It was further contended that the said
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offence should not have been registered by non applicant
against the applicants. Therefore, it was prayed that the
applicants be discharged from the said offence especially
from offence punishable under Section 3 (1) (ii) of the Act.
Non applicant-State filed reply thereby
resisting the claim of the applicants and prayed for
rejection of the application.
4.
The learned Special Judge, Akola was dealing
with the said trial having Sessions Trial No. 12/2006 and
was pleased to reject the applciation at Exh.-51 filed by
applicants for their discharge under Section 3 (1) (ii) of
the Act. Hence, this application is filed by the applicants.
5. On perusal of para 9 of the said application,
the applicants have taken a ground that neither caste of
the complainant nor the caste of accused was mentioned
in the report. Therefore, the ratio laid down by this Court
in the case of Manohar ..vs.. State of Maharashtra
ALL MR (Crimes) 2602, the prosecution is
unsustainable. In para 11, it is further stated that it
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seems that caste is mentioned as “Buddha” and it was
argued before the trial Court that “Buddha” is the name
of religion and not caste. Therefore, it was prayed that
unless the caste is mentioned in the First Information
report, the said First Information Report cannot be
investigated further and no allegation in the said First
Information Report can be sustained. In para 13, it is
further stated that there are no specific allegations in the
First Information Report and, therefore, provisions of
Section 3 (1) (ii) of the Act are not attracted.
6. On careful perusal of the averments made in
the application, it appears that the only ground taken in
the application is that caste of accused or complainant is
not mentioned in the First Information Report and no
specific allegations are made in the First Information
Report so as to attract provisions of Section 3 (1) (ii) of
the Act.
7. The learned A.P.P. for the State invited my
attention to the contents of the First Information Report
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and submitted that the allegations in the First Information
Report clearly attracts provisions of the Act and submitted
that the trial Court has rightly rejected the application for
discharge. Learned A.P.P. invited my attention to the
reported judgment of the Supreme Court in the case of
Ashabai Machindra Adhagale ..vs.. State of
Maharashtra and ors; (2009) 3 Supreme Court
Cases 789 and submitted that the point raised in this
application is no more res integra and the Apex Court in
the said judgment has held that merely non mentioning of
the caste of the accused or complainant, as the case may
be, may not itself be a ground to quash First Information
Report by exercising powers under Section 482 Code of
Criminal Procedure. Learned A.P.P further invited my
attention to the contents of the First Information Report
and submitted that this Court may not exercise
jurisdiction under Article 482 of the Code of Criminal
Procedure to quash the First Information Report. I have
perused contents of the application and provisions of
Section 3(1) (ii) of the Act. Section 3(1)(ii) reads as
under:-
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“3. Punishments for offences of
atrocities.- (1) Whoever, not being a member
of a Scheduled Caste or a Scheduled Tribe,-
(i) …..
(ii) acts with intent to cause injury, insult or
annoyance to any member of a Scheduled
Caste or a Scheduled Tribe by dumping
excreta, waste matter, carcasses or an other
obnoxious substance in his premises or
neighbourhood;”
8. On careful perusal of the annexures to the
application, it appears that in pursuance to registration of
the First Information Report statement of the witnesses
have been recorded and at the stage when matter was
fixed for framing charge, the person filed application for
discharge before the trial Court, which came to be
rejected.
9. On careful perusal of the complaint/First
Information Report it clearly reveals that there was
assault by applicants on he complainant as well as
relatives of the complainant. Therefore, bare perusal of
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the First Information Report would show that the said
First Information Report is lodged with specific allegations,
therefore, the first ground taken in the application that
there are no specific allegations in the First Information
Report, is required to be rejected.
10. The another contention, which is taken in the
application that no caste of the applicants or complainant
is mentioned in the First Information Report, the said point
is no more res integra and the Hon’ble Apex Court in the
case of Ashabai Machindra Adhagale (supra) in para
10 to 12 has held as under:-
“10. It needs no reiteration that the FIR
is not expected to be an encyclopedia. As
rightly contended by learned counsel for theappellant 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 underSection 23(1) of the Act, the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 (in short “the Rules)
have been framed.
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11. Rule 7 deals with the investigating
officer, Under Rule 7, investigation has to bedone by an officer not below the rank of
Deputy Superintendent of Police.
12. After ascertaining the facts during
the course of investigation it is open to theinvestigating officer to record that the
accused either belongs to or does not belong
to Scheduled Caste or Scheduled Tribe. Afterfinal 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 theaccused to bring to the notice of the court
that the materials do not show that the
accused does not belong to Scheduled Casteor Scheduled Tribe. Even if charge is framed
at the time of trial materials can be placed toshow that the accused either belongs or does
not belong to Scheduled Caste or ScheduledTribe.”
11. On bare perusal of para nos. 10 to 12 of the
judgment of the Apex Court, it appears that the Hon’ble
Apex Court has considered the rival contentions and held
that the First Information Report is not expected to be an
encyclopedia. Under Rule 7 of the Scheduled Castes and
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the Scheduled Tribes (Prevention of Atrocities) Rule 1995,
investigation has to be done by officer not below the rank
of Dy. Superintendent of Police and after ascertaining the
facts, during the course of investigation, it is open for the
Investigating Officer to record that the accused either
belongs to or does not belong to Scheduled Caste or
Scheduled Tribe. After final opinion is formed, it is open to
the Court either to accept the same or to take cognizance.
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.
12. Thus, what follows from the aforesaid
judgment of the Apex Court, it is not mandated in all the
provisions under the Act that it is mandatory to mention
caste of the accused or complainant, as the case may be,
in First Information Report/complaint. In my considered
view, the present applciation deserves to be rejected.
13. In view of above, the application is rejected.
Rule discharged. Interim order stands vacated.
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It is made clear that the observations made in
this judgment will not come in the way of the applicants
while facing the trial. These observations are only for the
purposes of deciding the present application.
JUDGE
kahale
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