no person who professes a religion different from the Hindu( the Sikh or the Buddhist) religion shall be deemed to be a member of a Scheduled Caste So, it is obvious that the persons other than the Hindu, Sikh or the Buddhist religion are not deemed as members of Scheduled Castes. Therefore, the petitioners/accused, who belong to Muslim religion, squarely come within the meaning of not being a member of Scheduled Castes/Scheduled Tribes as laid down under Section 3 of the Act. As rightly pointed out by the learned A.P.P, no such classification in their community is not a criterion for the purpose of Section (3) of the Act. Therefore, the argument of petitioners/accused cannot be countenanced. I find no merits in the Criminal Petition.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

Criminal Petition No.2817 of 2013

03-06-2015

M.M.A Baig and others..... Petitioners

The State of Andhra Pradesh Rep. by its Public Prosecutor, High Court of Andhra
Pradesh, Hyderabad and another.. Respondents

Counsel for Petitioners : Sri Sarosh Bastawala

Counsel for Respondent No.1 : Public Prosecutor

<Gist:

>Head Note:

?Cases referred:

HONBLE SRI JUSTICE U.DURGA PRASAD RAO        
CRIMINAL PETITION No.2817 of 2013  

ORDER:
        In this petition filed under Section 482 Cr.P.C, the
petitioners/A1 to A.5  seek to quash the proceedings in S.C.No.27 of
2012 on the file of VI Additional Metropolitan Sessions Judge at
Secunderabad.
2)      On the Complaint dated 26.10.2011 given by the de facto
complainantA. Krishna Veni, the Police of Nampally Police
Station registered a case in Cr.No.210 of 2011 and after investigation
laid charge sheet against the petitioners/Accused Nos. 1 to 5 for the
offence under Section 3 (1) (x) of SCs & STs( Prevention of
Atrocities) Act, 1989 ( for short the Act).
3)      The brief allegations in the charge sheet are that the
complaints family and the accused are residing opposite to each
other in Red Hills, Hyderabad.  The Complainant is a bank employee.
She along with her husbandChandra Kumar and children i.e., three
daughters and son are residing in H.No.11-5-518 and they belong to
Mala (SC) Community. The complainant and her husband are the  
owners of their house and extended their house by 10 x 10 feet by
raising a room. The extended site belongs to A.P. State Housing
Board and it is not a part of the passage.  Accused Nos. 1 to 3 are the
sons and A.5 is the daughter of A.4.  The accused raised foot steps in
front of their house causing hindrance to the passage of vehicles.  In
addition to it, Accused Nos. 1 to 3 used to park their vehicles near
foot steps further shrinking the passage. A.1 to A.5 felt jealousy on
the complainant for acquiring 10 x 10 feet site from the Housing
Board.  Every now and then A.1 to A.3 used to abuse the complainant
and her family members in the name of their caste.  The text of the
abuses is mentioned in the charge sheet.  Further, the accused used to
throw their garbage in the house of the complainant. The first accused
filed petitions making false allegations before various departments
like Municipality, Revenue and Police and thereby the officials of
various departments used to visit the house of complainant for
enquiry. The complainant is a heart patient and her husband is a
diabetic patient.  On 25.10.2011 some Municipality officials came to
her house and enquired about the petitions given by the first accused
reporting as if the complainant made illegal constructions.  On
26.10.2011 at about 1100 hours, Revenue Inspector came to the house
of complainant and enquired about the constructions.  In the mean
while, A.1 to A.3 took some photographs and threatened them that
they would demolish the house of the complainant.  Due to which, the
husband of the complainant, who is a diabetic patient, collapsed with
tension.   Hence, the charge sheet.
4 a)    Denying the allegations as false and motivated, the learned
counsel for petitioners firstly argued that the accused are the owners
of the residential premises in Red Hills and they and their family
members have been conducting relentless campaign since past few
years for the removal of number of unauthorized encroachments
made on the public road on the rear side of their premises by the
complainant and some others. The complainant is concerned, she
encroached 15 square meters of the Government road and made  
constructions and in this regard, the Collector in his Letter
L.R.No.C/6P/2010, dated 20.02.2010, ordered and directed the Zonal
Commissioner(GHMC) and the Tahsildar, Nampally, to clear the
encroachments on the public road and thereafter Tahsildar, Nampally
addressed the Zonal Commissioner of G.H.M.C. on 3.03.2010 to
make necessary arrangement for removal of the illegal
encroachments.  The Tahsildar of Nampally also wrote another Letter
No.C/SPL/2010, dated 04.05.2010 to the Deputy Commissioner of  
G.H.M.C for removal of encroachments.  On 24.09.2010, the
Tahsildar, Nampally, submitted a detailed report to the Collector in
relation to illegal and unlawful encroachments of the public road
made by Chandra Kumar i.e., the husband of the complainant and
some others. The Tahsildar, Nampally, submitted another Report to
Revenue Divisional Officer on 05-10-2010 again in the matter of
illegal and unlawful encroachment of public road by Chandra Kumar
and others.  Finally, on 07-01-2011 the Tahsildar, Nampally, in his
Letter N0.C/Spl/2010 requested the Deputy Commissioner of
G.H.M.C to immediately dismantle the premises of Chandra Kumar.
While so, on 26.10.2011, the Mandal Revenue Inspector inspected the
buildings in the morning hours.  Enraged by the above indulgence of
the authorities at the instance of the accused, a mob of persons
attacked the house of petitioners/accused with dangerous weapons
and pelted stones and broke glass panes of the residence and
threatened the inmates with murder, rape and abused them in filthiest
language and also threatened to outrage the modesty of womenfolk of
the house. The petitioners lodged a complaint on 26-10-2011, but the
police have not registered it. Hence, the petitioners filed
W.P.No.29258 of 2011 before the High Court and on its direction, the
petitioners filed a private complaint before XX Chief Metropolitan
Magistrate, Hyderabad, which was forwarded to S.H.O., Nampally
and the Police registered the same as a case in Cr.No.97 of 2012 and
was investigated into.  Meanwhile, the complainant gave report to the
police with all false allegations to implicate the petitioners in a false
case and hence, continuation of proceedings in the above back drop,
will amount to abuse of process of law.
(b)     Secondly arguing on the merits of the charge sheet allegations,
learned counsel submitted that even if those allegations are
uncontraverted, they do not disclose any offence because there is no
clarity in the allegations as to which of the accused uttered which of
the specific words of abuse and similarly, no date or day or time of
offence is mentioned in the charge sheet. If the contents of charge
sheet are perused, the only bald allegation is that all the accused were
abusing in chorus for the last two years, which is quite unbelievable.
(c)     Thirdly, the learned counsel argued that the Caste Certificates
of the complainant and her husband cannot be believed because the
O.S.D of Andhra Pradesh Station Commission for SCs & STs in his
Letter R.C.No.53/1599/RRS/SC/2011, dated 07.05.2011, has opined  
that the complainant and her husband have produced false and fake
Caste Certificates.
(d)     Fourthly, the learned counsel argued that the
petitioners/accused belong to Muslim community and under law, in
their community, there is no classification of the persons as members
of Scheduled Castes/Scheduled Tribes and non members of  
Scheduled Castes/Scheduled Tribes and therefore for the purpose of
Section 3 of the Act, the petitioners/Accused cannot be termed as
not being a member of Scheduled Castes/Scheduled Tribes.  He,
thus, prayed to quash the proceedings.
5a)     Per contra, the learned Assistant Public Prosecutor firstly
argued that merely because of pendency of disputes between the
parties relating to encroachment issue, it cannot be said that the
complaint allegation are false. On the other hand, the police after
thorough investigation and after examining number of witnesses have
come to the conclusion that the petitioners/accused committed the
offence and laid charge sheet and if at all the accused claim that they
were falsely implicated, they can as well establish their innocence
during trial.
(b)     Secondly, he argued that the abuse and other atrocious acts of
petitioners/accused was not an affair of single day, but  spread over a
period of more than two years and it is a continuing offence and
therefore, the complainant did not give specific date or time of the
offence and further, in view of the fact the accused being the residents
of opposite row, every now and then one or the other accused used to
abuse the complainant and her family members by their caste name
and hence the charge sheet  allegations should be understood in that
context.
(c)     Thirdly, denying the allegation that the complainant and her
husband obtained bogus Caste Certificates, the learned APP
submitted that the petitioners can as well raise that issue during trial
and prosecution will answer the same.
(d)     Fourthly, he argued that merely because there is no
classification of the persons as members of SCs/STs and non
members of SCs/STs in the community of accused, that is not a
criterion to decide their offence and on the other hand, since the
complainant and her family members belong to Scheduled Caste and
the accused are not belonging to that Caste, the offence under
Sections 3 (1) (x) of the Act will attract against the accused. He, thus,
prayed to dismiss the Petition.
6)      In the light of the above rival arguments, the point for
determination is :
         whether there are merits in this petition to allow?
7)      POINT: As can be seen from the record admittedly there has
been some bad blood between the families of complainant and the
accused, who are the residents of opposite rows in Red Hills,
Hyderabad, on the issue of alleged encroachment of 15 square meters
of site by the complainants family abutting their house. The
submission on behalf of the petitioners/accused is that they have been
relentlessly fighting against the encroachments made on the passage
by the complaints family and others in the vicinity and in this regard,
Revenue and Municipal authorities have also been taking steps to
demolish the unauthorized constructions made by Chandra Kumar,
the husband of the complaint, and others and keeping grudge, the
complaints family gave a false report to police, who laid charge
sheet.  In the considered view of this Court, whether the complaint is
motivated to wreck vengeance against the petitioners/accused or a
genuine one can be decided only after a full fledged trial.  As the
matter stands, a perusal of 161 Cr.P.C. Statement of
Complainant/LW.1--A. Krishna Veni, LW.2-A. Chandra Kumar,  
husband of the complainant, LW.3_A. Yeswanth Kumar, the son of
the complainant shows a strong prima facie case against the
Petitioners/Accused.  Not only their statements but also the
statements of independent witnesses who are residents of their
locality i.e., LW.4_N. Nilson, LW.5-S. Jaganadh, LW.6-N.
Rajkumar, LW.7_D. Venugopal, LW.8-A. Dharmavathi, LW.9-G.  
Rajamani amply support the version of the complainant and her
family members with regard to the offence committed by the
petitioners/accused.  Adding to it, the statement of LW.10-Shaik
Ayub, Revenue Inspector, would show that on 26.10.2011 when he
visited the premises to make enquiries with both parties, all the
accused used abusive language against the family of complainant.  Of
course, the veracity of the statements of above witnesses has to be
determined only after trial, but at this juncture, there is a prima facie
material against the petitioners/Accused.  As rightly pointed out by
the learned A.P.P since the alleged atrocious acts of
petitioners/accused are continuing ones over a long period, non
mentioning of specific date and time of the offence cannot be
regarded as a severe lapse on the part of the complainant.  Then with
regard to the allegation about the genuineness of the Caste
Certificates of the complainant and her husband, the same can be
decided only after full fledged trial.
8)      Then the last argument of the petitioners/accused is that in their
community there is no classification of the persons as members of
Scheduled Caste/Scheduled Tribes and non members of Scheduled  
Castes/Scheduled Tribes and therefore they cannot be treated as not
being members of Scheduled Castes/Scheduled Tribes for the
purpose of Section 3 of the Act and they cannot be charged under
Section 3 (1) (x) of the said Act.  It must be said that this argument
has no conviction.  Section 3 (1) (x) of the Act reads thus:
 3. Punishments for offences of Atrocities: (1) Whoever, not being
a member of a Scheduled Caste or a Scheduled Tribe,-
(i)     xxxx
(ii)    xxxx
(iii)   xxxx
(iv)   xxxx
(v)    xxxx
(vi)   xxxx
(vii)  xxxx
(viii) xxxx
(ix)   xxxx

(x)  intentionally insults or intimidates with intent to humiliate a
member of a Scheduled Caste or a Scheduled Tribe in any place
within public view.

9)      So, as can be seen, in order to complete an offence under
Section 3 (1) (x) of the Act or other provisions of Section (3) of the
Act, the victim shall be a member of Scheduled Caste or Scheduled
Tribe, whereas the offender shall not be a member of Scheduled Caste
or Scheduled Tribe.  Section 2 (c) of the Act defines Schedule Castes
and Scheduled Tribes as:
         Scheduled Castes and Scheduled Tribes shall have the
meanings assigned to them respectively under Clause (24) and
Clause (25) of Article 366 of the Constitution.

10)     It is in this context, the relevant Articles of the Constitution
are Articles 341, 342 and 366.  They read thus:
        Article 341: (1)  The President may, with respect to any State or
Union territory, and where it is a state . after consultation with the
Governor.. thereof, by public notification, specify the castes, races or
tribes or parts of or groups within castes, races or tribes which shall for the
purposes of this Constitution be deemed to be scheduled Castes in relation
to that State or Union territory, as the case may be.

        (2)  Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under Clause 91) any
caste, race or tribe, or part of or group within any caste, race or tribe, but
save as aforesaid a notification issued under the said clause shall not be
varied by any subsequent notification.

     Article 342: (1)  The President may, with respect to any State or Union
territory, and where it is a state . after consultation with the
Governor.. thereof, by public notification, specify the tribes or tribal
communities or part of or groups within tribes or tribal communities which
shall for the purposes of this Constitution be deemed to be scheduled
Tribes in relation to that State or Union territory, as the case may be.
(2)  Parliament may by law include in or exclude from the list of
Scheduled Tribes specified in a notification issued under Clause (1) any
tribe or tribal community or part of or group within any tribe or tribal
community, but save as aforesaid a notification issued under the said
clause shall not be varied by any subsequent notification.

     Article 366:  In this Constitution, unless the context otherwise
requires, the following expressions have the meanings hereby respectively
assigned to them that is to say

   (24)  Scheduled Castes means such castes, races or tribes or parts of or
groups within such castes, races or tribes as are deemed under article 341
to be Scheduled Castes for the purposes of this Constitution:

   (25)   Scheduled Tribes mans such tribes or tribal communities or parts
of or groups within such tribes or tribal communities as are deemed under
article 342 to be Scheduled Tribes for the purposes of this Constitution.

11)     So, a conjunctive study of above provisions would
show that the President of India by a public Notification specify
the Castes and Tribes which are included in the category of
Scheduled Castes and Scheduled Tribes.  It is in exercise of that
power conferred under Articles 341 and 342, the Presidential
Order, 1950, was issued notifying certain Castes and Tribes as
Scheduled Castes and Scheduled Tribes.  It is important to note
that in para 3 of the Constitution ( Scheduled Castes) Order,
1950, it is specifically mentioned to the effect that
notwithstanding anything  contained in paragraph 2, no person
who professes a religion different from the Hindu( the Sikh or
the Buddhist) religion shall be deemed to be a member of a
Scheduled Caste  So, it is obvious that the persons other than
the Hindu, Sikh or the Buddhist religion are not deemed as
members of Scheduled Castes. Therefore, the
petitioners/accused, who belong to Muslim religion, squarely
come within the meaning of not being a member of Scheduled
Castes/Scheduled Tribes as laid down under Section 3 of the
Act.  As rightly pointed out by the learned A.P.P, no such
classification in their community is not a criterion for the
purpose of Section (3) of the Act. Therefore, the argument of
petitioners/accused cannot be countenanced. I find no merits in
the Criminal Petition.

12.     Accordingly, the Criminal Petition is dismissed.

     As a sequel, miscellaneous petitions pending, if any, shall stand
closed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 03.06.2015