[HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.1379 OF 2012 Dated 18-6-2014 Between:
P.S.C.Bose Babu.
And:
..Petitioner.
Buradagunta Abraham Lincoln and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.1379 OF 2012 ORDER:
This petition is filed under Section 482 Cr.P.C. to quash C.F.R.No.8626 of 2011 on the file of IV Additional Munsif Magistrate, Guntur which is registered as F.I.R.No.7 of 2012 of Lalapet Police Station, Guntur Urban, for the alleged offences punishable under Sections 3(1) (viii), (ix) (x) and Section 3 (2)(i) and (ii) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC & ST Act.) Petitioners herein are Assistant General Manager and General Manager, H.R. Department, Andhra Bank.
Heard both sides.
Advocate for petitioners submitted that the first respondent herein joined bank service on 13-6-1981 as clerk-cum-cashier and thereafter promoted as Officer Junior Management Grade Scale-I in the year 1986 and he remained absent for duty from 9-4-2003 to 25-5-2003 without any sanction of leave or prior permission for which he was charge sheeted for the said absence. He further submitted that he pleaded guilty before the enquiry committee and accordingly, the Disciplinary Authority imposed Minor Penalty of reduction of pay as per the orders dated 26-12-2003. He submitted, First respondent was transferred from Guntur zone to Visakhapatnam zone in August, 2003 and he was relieved from Guntur branch on 29-8-2003 but he did not report to duty at Visakhapatnam and abstained from duty unauthorizedly from 30-8-2003 and first respondent remained absent on the plea of sickness for which he was advised to appear before Bank panel doctor for detailed medical examination but he failed to appear before bank panel doctor and subsequently, he was served with a charge memo dated 21-05-2004 and a committee was constituted to enquire into the unauthorised absence. The Enquiry Officer found him guilty and on that disciplinary authority after examining the material papers and considering the unauthorized absence of the first respondent herein imposed major penalty of dismissal. The first respondent challenged the said orders in the Honourable High Court by filing writ petition in W.P.No.19863 of 2005 and this Court disposed of the said petition with observation that the first respondent to avail the remedy of appeal and accordingly, first respondent preferred appeal before the appellate authority and the appellate authority has confirmed the penalty of disciplinary authority as per orders dated 31-3-2006. C.B.I., Visakhapatnam informed the bank authorities through letter dated 16-1-2007 that they have registered a crime against the first respondent and two others for having entered into a criminal conspiracy to cheat State Bank of Hyderabad, Guntur and that the first respondent was taken into custody and was in judicial custody at Kuzithurai, , K.K.District, Tamilnadu.
He further submitted that in the year 2009, first respondent submitted representation to the National commission for Scheduled Castes and Scheduled Tribes to the State office of A.P. for which the National Commission addressed a letter to Andhra Bank seeking a detailed report and the bank submitted a detailed report on 24-5-2010 under the signature of first petitioner, thereafter, respondents got issued a notice to the Bank for which bank issued reply under the signature of second petitioner, respondent again issued another notice in June, 2001, for that also, bank replied under the signature of second petitioner, the respondent in total issued four notices to the bank and all the notices are replied and finally in November, 2011, he filed this private complaint before IV Additional Munsif Magistrate, Guntur. He further submitted that the complaint averments do not attract any of the provisions of Scheduled Castes and Scheduled Tribes Act and the first respondent did not work under the petitioners at any point of time and therefore, the question of harassing him is a creation. He further submitted that the second petitioner has only addressed a letter to the National Commission for Scheduled Castes as a reply furnishing the factual position.
He further submitted that first petitioner has only given reply to the notices served on the bank on behalf of the counsel for first respondent and in these replies, there is absolutely no material attracting any of the provisions of Scheduled Castes and Scheduled Tribes Act. He further submitted that complaint is filed only to harass the petitioners with ulterior motive and the first petitioner has retired from service after filing of this complaint whereas second petitioner has already retired by the time this complaint is filed. He further submitted that on account of this complaint, both the petitioners are being called to Guntur and the present proceedings are nothing but abuse of process of law.
Learned counsel for the petitioners relied on a decision reported in MASUMSHA HASANASHA
[1]
MUSALMAN vs. STATE OF MAHARASHTRA ( ),
Honourable Supreme Court held as follows:
“To attract the provisions of Section 3(2)(v) of the Act, 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 is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises.”
He further relied on a decision reported in GORIGE PENTAIAH Vs. STATE OF ANDHRA PRADESH AND
[2]
OTHERS ( ), Honourable Supreme Court held as
follows:
“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. 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.”
Referring to above decisions, advocate for petitioners submitted that in the entire complaint, no where it is mentioned that the accused was not a member of Scheduled Castes and Schedule Tribes and he intentionally intimidated or insulted first respondent herein in a place within public view.
He submitted if the entire allegations in the complaint are taken as true and correct they do not constitute the prima facie offence under any one of the penal provision as indicated in the complaint.
On the other hand, advocate for first respondent submitted that first respondent has not committed any type of misconduct and disciplinary proceedings against the first respondent are initiated only to harass him because of his community. He further submitted that right from the beginning, bank management treated the first respondent as an enemy and they did not treat the first respondent as a human being. He submitted though first respondent was humiliated, he served bank for development of bank business, in spite of that, no sympathy was shown towards him. He submitted that first respondent appealed and begged the management many times to treat him as a human being but he was insulted like a slave. He further submitted that there is prima facie material against the petitioner attracting the provisions of Scheduled Castes and Scheduled Tribes Act. He further submitted that the petitioner with a common intention to humiliate the first respondent as he belongs to Schedule Caste Community gave false evidence against him and these aspects have to be enquired and that there are no grounds to quash the proceedings.
Now, the point that would arise for my consideration in this petition is that whether complaint allegations reveal any prima facie offences or not.
POINT:
According to the complaint allegation, because of the letter from the Bank, the complaint was deprived of getting proper assistance from the Scheduled Castes Commission and thereby the provisions of Scheduled Castes and Scheduled Tribes Act are attracted. As per the complaint allegations, letter from the Bank by way of report which was called by the National Commission for Scheduled Caste on the representation of the first respondent and the replies given by the Bank to the notices issued on behalf of the first respondent would amount to harassment to the first respondent because of his community. As rightly pointed out by the Advocate for petitioners, the Bank only reported the factual position with regard to disciplinary action taken against the first respondent for his unauthorized absence to the National Commission for Scheduled Castes but nothing was stated in it with regard to his caste, or any abusive words. Admittedly, Bank informed the National Commission for Scheduled Caste through a letter dated 24-5-2010 and the same is referred in the complaint also.
From a perusal of the above letter, it is clear that bank informed the National Commission for Scheduled Caste and Scheduled Tribe about the unauthorized absence of the first respondent and the departmental action and punishment thereon and informed the National Commission that it is not possible to reopen the matter as the punishment was confirmed by the appellate authority. Except that nothing is stated in the said letter.
With regard to the replies issued to the notices, nothing was stated in those replies attracting the provisions of Scheduled Castes and Scheduled Tribes Act.
In the complaint, it is alleged that the petitioner herein said to have committed offences punishable under Sections 3(1) (viii) (ix) and (x) and 3 (2) (i) and (ii) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Section 3(1) (viii) of the Act reads as follows:
“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”
Section 3(1) (ix) of the Act reads as follows:
“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”
Section 3(1) (x) of the Act reads as follows:
“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- internationally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”
Section 3(2) (i) of the Act reads as follows:
“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of a offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death.
Section 3(2) (ii) of the Act reads as follows:
“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine.”
Disciplinary proceedings have been initiated against the complainant Enquiry Officer conducted a regular departmental Enquiry and having accepted the findings of the Enquiry Officer, the Disciplinary authority imposed punishment of dismissal from service for his willful absence from duty from 30-8-2003 till termination and that his long absence was not justifiable under any norms. On appeal, the said punishment was confirmed and therefore, it cannot be said that the legal proceedings initiated against the complainant are false or malicious or vexatious.
Coming to the offence under Section 3(1)(ix) of the Act, the allegation in the complaint is that by virtue of proceedings dated 23-6-2010 in Number 46/32 of 2009, the petitioners have falsely represented to the Director of Scheduled Caste Commission that the complainant case comes under Vigilance in stead of non- vigilance and therefore, it amounts to harassment of a scheduled caste employee. No material is placed to show that unauthorized absence from duty will come under the category of non-vigilance as per the Bank rules or norms and there is not even an allegation in the complaint as to how this act of unauthorized absence and the disciplinary enquiry thereon would come under the category of non-vigilance.
Now coming to offence under Section 3 (1) (x) of the Act, there is absolutely, no allegation in the complaint that the petitioners have intentionally insulted or intimated first respondent as he belonged to Scheduled Caste or with an intention to humiliate him as he is a member of Scheduled Castes in any place within public view. The other allegations of the first respondent is that the petitioners have committed offence under Section 3(2) (viii) and 3(2)(ii) of the Scheduled Castes and schedule Tribes Act.
The entire complaint do not reveal any allegation attracting sections 3 (2) (i) and 3(2) (ii) of Scheduled Castes and Scheduled Tribes Act. Therefore, Sections 3 (2) (i) and 3(2) (ii) of Scheduled Castes and Scheduled Tribes Act have no application as there is no allegation in the complaint to the effect that the petitioners have intentionally gave false evidence in a competent criminal court and in pursuance of that false or fabricated evidence, the first respondent complaint was convicted and sentenced.
In a decision reported in STATE OF HARYANA
[3]
AND OTHERS vs. BHAJAN LAL AND OTHERS ( ),
Honourable Supreme Court laid down guidelines wherein it is held that 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, High Court can exercise power under Section 482 Cr.P.C. to quash proceedings to prevent abuse of process of the court or otherwise to secure ends of justice.
Therefore, if the entire allegations in the complaint are taken as true and correct, at this stage, they do not constitute prima facie offence under any of the penal provisions as indicated in the complaint. Hence continuation of proceedings against the petitioners is nothing but abuse of process of court.
If the ratio of the principles of law settled in the above referred decisions of Honourable Supreme Court are applied to the facts of the case, I am of the view that this is a fit case to exercise jurisdiction under Section 482 Code of Criminal Procedure to quash the C.F.R.No.8626 of 2011 which is registered as F.I.R.No.7 of 2012 to prevent abuse of process of law.
Therefore, this Criminal Petition is allowed quashing the proceedings against the petitioners.
As a sequel to the disposal of this Criminal petition, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 18-6-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL PETITION No.1379 OF 2012 Dated 18-6-2014
[1] (2000) 3 SCC 557
[2] (2008) 12 SCC 531
[3] 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426