THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION NOs.8269 OF 2011 and batch
01-08-2014
1.N.V. Ramana Raju2.B. Venkatesulu...PETITIONERS
The State of A.P. rep. by Public Prosecutor High Court of A.P, Hyderabad and 3
others.RESPONDENTS
Counsel for Petitioners : Sri N. Ashwani Kumar
Counsel for Respondent Nos.1 to 3: Addl. Public Prosecutor
Counsel for Respondent No.4: Sri Ravi Kumar Mathangi
<GIST:
>HEAD NOTE:
?Cases referred
(2011) 11 SCC 259
2 (2011) 11 SCC 258
3 (2000) 12 SCC 531
4 2012 (1) ALT (Crl.) 240 (A.P)
5 AIR 1960 SC 866
6 AIR 1992 SC 604
7 (1976) 3 SCC 736
8 (2007) 12 SCC 1
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION Nos.8269 and 9066 OF 2011
COMMON ORDER:
1 These two criminal petitions are filed (Crl.P.No.8269 of 2011 by
A1 and A2, and Crl.P.No.9066 of 2011 by A3 and A4) under Section
482 Cr.P.C. to quash the proceedings Cr.No.242 of 2011 of
Nagarampalem Police Station, Guntur District.
2 Since the point involved in both the petitions is one and the
same, I am inclined to dispose of these two petitions by this common
order.
3 The contention of the learned counsel for the petitioners is two
fold, viz., 1) Registration of Crime No.242 of 2011 against the
petitioners under Section 3 (1) (x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not legally
sustainable; and 2) the allegations made in the complaint do not
constitute the offence alleged to have been committed by the
petitioners. Per contra, the learned Additional Public Prosecutor
submitted that the allegations made in the complaint constitute the
alleged offence. The contention of learned counsel for fourth
respondent is that the petitioners have intentionally insulted and
humiliated Dr.Y.Kiran Kumar by delaying promotion to him as he
belongs to Scheduled Caste community.
4 On 22.08.2011, the fourth respondent submitted a complaint to
the Station House Officer, Nagarampalem Police Station who in turn
registered a case in Cr.No.242 of 2011 under section 3 (1) (x) of S.C. &
S.T (Prevention of Atrocities) Act against the petitioners. The fourth
respondent submitted the complaint shouldering the responsibility of
protecting the interest of the employees belonging to the Scheduled
Caste and Scheduled Tribe community. As per the allegations made in
the complaint, the petitioners herein denied promotion to Dr.Y.Kiran
Kumar in time, thereby insulted and humiliated him as he belongs to
Scheduled Caste community.
5 Dr.Y.Kiran Kumar joined as Assistant Civil Surgeon in
Government General Hospital, Guntur on 26.12.1991. He was
promoted as Assistant Professor and joined as such on 06.04.1994 in
the same college. On 15.09.2003, the screening committee approved
and recommended the name of Dr.Y.Kiran Kumar to the post of
Associate Professor and accordingly he was promoted on 06.8.2004.
While he was working as Associate Professor, he was reverted to the
post of Assistant Professor, as per Proc.Rc.No.34388/E1.A/04, dated
9.6.2005 issued by the then Director of Medical Education. Aggrieved
by his reversion, Dr.Y.Kiran Kumar filed O.A.No.7037 of 2007 on the
file of Andhra Pradesh Administrative Tribunal, Hyderabad (hereafter,
APAT), challenging the proceedings dated 09.06.2005. The said O.A.
was allowed by APAT by its order dated 25.04.2006 by setting aside
the Proc. Rc.No.34388/E1.A/04, dated 09.06.2005. Accordingly,
Dr.Y.Kiran Kumar was again promoted as Associate Professor on
05.9.2006. Alleging that he was not properly placed in the seniority
list, Dr.Y.Kiran Kumar filed O.A.No.1777 of 2009 questioning the
proceedings in Rc.No.22163/E-1-A/2006, dated 05.9.2006
whereunder he was promoted. The APAT partly allowed O.A.No.1777
of 2009 by its order dated 13.12.2009 and further held that
promotion of Dr.Y.Kiran Kumar shall be deemed to be from 06.8.2004
i.e., the date on which he was reverted from the post of Associate
Professor. In the order, the respondents therein were directed to
prepare seniority list and finalise the same by circulation, and even
thereafter if Dr.Y.Kiran Kumar had any grievance, he can approach
the respondents.
6 In the above factual background, let me consider the allegations
made in the complaint. It should be remembered that the complaint
was given to the Police by the president of Indian Dalith Employees
Association. It is alleged in the complaint that Accused Nos.1, 3 and
4 were responsible for injustice caused to Dr.Y.Kiran Kumar for
getting promotion in 2004. Accused No.2 harassed Dr.Y.Kiran Kumar
without considering his representations for about eight (8) years i.e.
till his (A2s) retirement on 31.07.2011. The substance of the
complaint is that Dr. Y. Kiran Kumar could not get promotion in time
because the petitioners intentionally delayed the promotion to Dr.Y.
Kiran Kumar as he belongs to Scheduled Caste community.
7 As per Section 2(a) of the Act, atrocity means an offence
punishable under Section 3. According to Oxford English Reference
Dictionary, atrocity means an extremely wicked cruel act especially
one involved physical violence or injury. As per the provisions of the
Act, an act or omission on the part of a person, who does not belong
to Scheduled Caste or Scheduled Tribe, will fall within the definition
of atrocity if the same is punishable under Section 3.
8 In the instant case, the crime has been registered under Section
3 (1) (x) of S.C. & S.T (PoA) Act. The crucial question that falls for
consideration is whether the alleged act of the petitioners will fall
within the ambit of Section 3 of the said Act. Section 3 of the Act
reads as under:
Section 3 - Punishments for offences of atrocities
(1) Whoever, not being a member or a Scheduled Caste or a
Scheduled Tribe, --
(i) forces a member of a Scheduled Caste or a Scheduled
Tribe to drink or eat any inedible or obnoxious
substance;
(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
any other obnoxious substance in his premises or
neighbourhood;
(iii) forcibly removes clothes from the person of
a member of a Scheduled Caste or a Scheduled Tribe or
parades him naked or with painted face or body or
commits any similar act which is derogatory to human
dignity;
(iv) wrongfully occupies or cultivates any land owned by,
or allotted to, or notified by any competent authority to
be allotted to, a member of a Scheduled Caste or a
Scheduled Tribe or gets the land allotted to him
transferred;
(v) wrongfully dispossesses a member of a Scheduled
Caste or a Scheduled Tribe from his land or premises or
interferes with the enjoyment of his rights over any land,
premises or water;
(vi) compels or entices a member of a Scheduled Caste
or a Scheduled Tribe to do 'begar' or other similar forms
of forced or bonded labour other than any compulsory
service for public purposes imposed by Government;
(vii) forces or intimidates a member of a Scheduled
Caste or a Scheduled Tribe not to vote or to vote to a
particular candidate or to vote in a manner other than
that provided by law;
(viii) institutes false, malicious or vexatious suit or
criminal or other legal proceedings against a member of
a Scheduled Caste or a Scheduled Tribe;
(ix) 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;
(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;
(xi) assaults or uses force to any woman belonging to a
Scheduled Caste or a Scheduled Tribe with intent to
dishonour or outrage her modesty;
(xii) being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe
and uses that position to exploit her sexually to which
she would not have otherwise agreed;
(xiii) corrupts or fouls the water of any spring, reservoir
or any other source ordinarily used by members of the
Scheduled Caste or the Scheduled Tribes so as to render
it less fit for the purpose for which it is ordinarily used;
(xiv) denies a member of a Scheduled Caste or a
Scheduled Tribe any customary right of passage to a
place of public resort or obstructs such member so as to
prevent him from using or having access to a place of
public resort to which other members of public or
any section thereof have a right to use or access to;
(xv) forces or causes a member of a Scheduled Caste or
a Scheduled Tribe to leave his house, village or other
place of residence,
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.
(2) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe,--
(i) 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 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;
(ii) 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;
(iii) commits mischief by fire or any explosive substance
intending to cause or knowing it to be likely that he will
thereby cause damage to any property belonging to
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 seven years and with fine;
(iv) commits mischief by fire or any explosive substance
intending to cause or knowing it to be likely that he will
thereby cause destruction of any building which is
ordinarily used as a place of worship or as a place for
human dwelling or as a place for custody of the property
by a member of a Scheduled Caste or a Scheduled Tribe,
shall be punishable with imprisonment for life and with
fine;
(v) commits any offence under the Indian Penal Code
(45 of 1860) punishable with imprisonment for a term of
ten years or more against a person or property on the
ground that such person is a member of a Scheduled
Caste or a Scheduled Tribe or such property belongs to
such member, shall be punishable with imprisonment
for life and with fine;
(vi) knowingly or having reason to believe that an offence
has been committed under this Chapter, causes any
evidence of the commission of that offence to disappear
with the intention of screening the offender from legal
punishment, or with that intention gives any
information respecting the offence which he knows or
believes to be false, shall be punishable with the
punishment provided for that offence; or
(vii) being a public servant, commits any offence under
this section, shall be punishable with imprisonment for
a term which shall not be less than one year but which
may extend to the punishment provided for that offence.
9 A careful scanning of the provisions of Section 3 clearly
demonstrates that the disputes pertain to service matters do not fall
within the purview of Section 3. Promotion to a Government
employee depends upon service conditions and relevant Rules and
Regulations issued from time to time besides his eligibility, seniority
coupled with entries made in Annual Confidential Records. The
promotions from Assistant Civil Surgeon to Assistant Professor and
from Assistant Professor to Associate Professor are governed by
G.O.Ms.Nos.502 HM&FW (A1) Department, dated 13.9.2003 and
G.O.Ms.No.154, HM&FW (A2) Department, dated 04.5.2002. When
promotions were given basing on the assessment made by the
screening committee, prima facie, the petitioners cannot be found
fault with. Even assuming that the entire screening committee has
violated or deviated from the Rules in order to deny promotion to
Dr.Y.Kiran Kumar, then the entire screening committee has to be
found fault with. It is not the case of the fourth respondent that
petitioners have violated certain Regulations, which were in force and
caused injustice to Dr.Y.Kiran Kumar in getting promotion in 2004.
The fact remains that Dr. Y.Kiran Kumar got promotion in the year
2004 itself. But due to the orders of the Andhra Pradesh
Administrative Tribunal (APAT), he was reverted back. It is a known
fact that the Government officials have to implement the orders of the
APAT. Otherwise, they have to face consequences. In order to avoid
the legal consequences, the concerned officials have implemented the
orders of the APAT. There is no specific averment in the complaint
that Dr.Y.Kiran Kumar was eligible to the post of Associate Professor
much prior to August 2004 and at that point of time the petitioners
alone are competent to promote Dr.Y.Kiran Kumar as Associate
Professor.
10 For better appreciation of the rival contentions, it is apt to
mention few admitted facts.
11 A perusal of the record reveals that G.O.Ms.No.154 HM&FW
(A2) Department, dated 04.5.2002 provides guidelines for fixing of
inter-se seniority in the feeder cadre to the post of Assistant Professor
and Associate Professors by following seniority vertically. For one
reason or the other, the State Government has made necessary
amendments to G.O.Ms.No.154 and issued G.O.Ms.No.502, HM&FW
(A1) Department, dated 13.9.2003. As per G.O.Ms.No.502, the inter-
se seniority in the feeder cadre shall be fixed horizontally. The
procedure to be followed for fixing of inter-se seniority in both the
G.Os is diametrically opposite. In the year 2003, the screening
committee recommended and promoted Assistant Professors as
Associate Professors. The Assistant Professors who could not get
promotion, in view of the change of mode of fixing the inter-se
seniority, filed O.As before the APAT, challenging the legality of the
G.O.Ms.No.502 dated 13.09.2003. The said O.As were allowed setting
aside the promotions recommended by the screening committee in the
year 2003. Due to setting aside of the promotions recommended by
the screening committee, consequently it also effected the promotion
given to Dr. Y. Kiran Kumar and others. Therefore, the material
placed before this Court clinchingly establishes the root cause for
setting aside of the promotion of Dr. Y. Kiran Kumar and delay in
giving promotion is due to change of the policy of the Government in
respect of inter-se seniority of Assistant Professors.
12 The crucial question that falls for consideration is whether the
allegations made in the complaint satisfy the basic ingredients of
Section 3(1)(x) of the Act. The Honble apex Court, in Asmathunnisa
Vs. State of Andhra Pradesh , observed as follows:
8. In this connection, learned counsel for the appellant has placed
reliance on a judgment of the Kerala High Court in E. Krishnan
Nayanar v. Dr. M.A. Kuttappan & Others 1997 Crl. L.J. 2036. The
relevant paragraphs of this judgment are paras 12, 13 and 18. The
said paragraphs read as under:
"12. A reading of Section 3 shows that two kinds of insults against the
member of Scheduled Castes or Scheduled Tribes are made punishable - one
as defined under sub-section (ii) and the other as defined under sub-section
(x) of the said section. A combined reading of the two sub-sections shows
that under section (ii) insult can be caused to a member of the Scheduled
Castes or Scheduled Tribes by dumping excreta, waste matter, carcasses or
any other obnoxious substance in his premises or neighbourhood, and to
cause such insult, the dumping of excreta etc. need not necessarily be done
in the presence of the person insulted and whereas under sub-section (x)
insult can be caused to the person insulted only if he is present in view of
the expression "in any place within public view". The words "within public
view", in my opinion, are referable only to the person insulted and not to the
person who insulted him as the said expression is conspicuously absent in
sub-section (ii) of Section 3 of Act 3/1989. By avoiding to use the expression
"within public view" in sub-section (ii), the Legislature, I feel, has created
two different kinds of offences an insult caused to a member of the Scheduled
Castes or Scheduled Tribes, even in his absence, by dumping excreta etc. in
his premises or neighbourhood and an insult by words caused to a member
of the Scheduled Castes or Scheduled Tribes "within public view" which
means at the time of the alleged insult the person insulted must be present
as the expression "within public view" indicates or otherwise the Legislature
would have avoided the use of the said expression which it avoided in sub-
section (ii) or would have used the expression "in any public place".
13. Insult contemplated under sub-section (ii) is different from the insult
contemplated under sub-section (x) as in the former a member of the
Scheduled Castes or Scheduled Tribes gets insulted by the physical act and
whereas is the latter he gets insulted in public view by the words uttered by
the wrongdoer for which he must be present at the place.
xxx xxx xxx
18. As stated by me earlier the words used in sub- section (x) are not "in
public place", but "within public view" which means the public must view the
person being insulted for which he must be present and no offence on the
allegations under the said section gets attracted. In my view, the entire
allegations contained in the complaint even if taken to be true do not make
out any offence against the petitioner".
9. The aforesaid paragraphs clearly mean that the words used are "in
any place but within public view", which means that the public must
view the person being insulted for which he must be present and no
offence on the allegations under the said section gets attracted if the
person is not present.
13 Establishment of the following two conditions is sine qua non to
register the crime under Section 3 (1) (x) of the Act in view of the ratio
laid down in the case cited supra.
i. The person belongs to Scheduled Caste or Scheduled Tribe being
insulted or intimidated in his presence in the name of the caste;
ii. The incident must occur in any place within the public view.
14 As per the principle enunciated in Gorige Pentaiah v. State of
A.P. , D. Santosh Reddy v. S.H.O. of Shamshabad P.S and
U.Sadasivaiah v. State of Andhra Pradesh , if the allegations made in
the complaint or FIR do not satisfy the basic ingredients of Section 3
(1) (x) of the Act, the Court can quash the proceedings by exercising
inherent jurisdiction under Section 482 Cr.P.C.
15 It is an admitted fact that Dr. Y.Kiran Kumar did not lodge the
complaint against the petitioners alleging that the petitioners have
committed the offence under Section 3 (1) (x) of the Act. The fourth
respondent association lodged the complaint alleging as if the
petitioners have intentionally insulted Dr. Y. Kiran Kumar by delaying
his promotion on the sole ground that he belongs to Scheduled Caste
community. There is no allegation in the complaint that the
petitioners have intentionally insulted or intimidated Dr. Y. Kiran
Kumar in his presence in the name of his caste and in a place within
the public view. Even if the allegations made in the complaint ex facie
taken to be true and correct, the petitioners never insulted Dr. Y.
Kiran Kumar in the name of his caste so as to attract the alleged act
of the petitioners within the ambit of Section 3 (1)(x) of the Act. The
substance of the allegations made in the complaint is that the
petitioners herein denied promotions to Dr. Y. Kiran Kumar as he
belongs to Scheduled Caste community. Even assuming but not
admitting the allegations are true and correct, the same will not fall
under anyone of the provisions enumerated under Section 3 of the
Act. When the alleged act of the petitioners is not punishable under
Section 3 of the Act, by any stretch of imagination, it cannot be
presumed that the alleged act of the petitioners will come under the
purview of atrocity as defined under section 2 (a) of the Act.
16 It is a settled principle of law that the Court can quash the
proceedings under section 482 Cr.P.C. in the following circumstances.
i. If the allegations made in the complaint do not constitute any
offence much less the offence alleged to have been committed by
the accused,
ii. If there is a legal bar for registration of the criminal case and
continuation of investigation against the accused.
iii. Even if the allegations made in the complaint ex facie are taken
to be true and correct, the possibility of conviction of the
accused is too remote or bleak,
iv. If the registration of the case and continuation of the
investigation would amount to abuse of process of law; and
v. To secure the ends of justice.
17 The Apex Court in R.P.Kapoor v State of Punjab , held as
hereunder:
"Cases may also arise where the allegations in the F.I.R. or the
complaint even if they are taken at their face value and accepted in
their entirety do not constitute the offence alleged. In such cases, no
question of appreciating evidence arises; it is a matter merely of
looking at the complaint or the First Information Report to decide
whether the offence alleged is disclosed or not. In this case it would
be legitimate to the High Court to hold that it would be manifestly
unjust to allow the process of the criminal court to be issued against
the accused person."
18 In State of Haryana v Bhajanlal the Apex Court after having
surveyed the entire case law on the point has laid down certain
indicia with reference to which, a High Court may in exercise of
powers under Article 226 of the Constitution of India or under
Section 482 Cr.P.C may interfere in proceedings relating to
cognizable offences to prevent abuse of the process of any court or
otherwise to secure the ends of justice.
19 In State of Karnataka v L.Muniswamy , the Supreme Court
observed that the wholesome power under Section 482 Cr.PC
entitles the High Court to quash a proceeding when it comes to the
conclusion that allowing the proceedings to continue would be an
abuse of the process of the court or that the ends of justice require
that the proceedings ought to be quashed.
20 A three-Judge Bench of the Supreme Court in Inder Mohan
Goswami v State of Uttaranchal , after examining the scope and
ambit of Section 482 of the Criminal Procedure Code, observed that
inherent powers under Section 482 should be exercised for the
advancement of justice. If any abuse of the process leading to injustice is
brought to the notice of the Court, then the Court would be fully justified in
preventing injustice by invoking the inherent powers of the Court.
21 Before parting with the order, one has to observe that the
parliament enacted the S.C & S.T (PoA) Act with avowed object to
prevent atrocities against the members of that community. The
scheme of the Act clearly demonstrates that the parliament with an
intention to enhance the social dignity and self respect of the
members of the S.C. & S.T community incorporated various
provisions in the Act. The various provisions of the Act will be a
shield but not a sword. In recent days the number of cases
registered under this Act is increasing day by day, which clearly
manifests the social awareness among the members of the S.C &
S.T. community. The letter and spirit of the constitution of this
country is that a citizen of this country should not claim that he
can do everything as a matter of right without discharging the social
and moral obligations cast on him. Before making an allegation,
one should take reasonable care and caution. Lodging a complaint
by an association without noticing the factual background may
send a wrong signal to the society. The provisions of the Act are
being misused for selfish ends. In the instant case, the possibility of
filing of the present complaint by the association in order to achieve
the object of the Act without verifying the factual background may
not be ruled out. If the association has bestowed its interest prior to
filing of the complaint to the rules and regulations governing the
promotion avenues as well as the inter-se seniority being followed in
the feeder cadre, certainly it would not have ventured to lodge the
complaint. The trauma likely to be undergone, more particularly,
by person at the helm of affairs to be an accused of moral turpitude
on the ground that he has shown discrimination towards down
trodden people, is unfathomable. For one reason or the other, the
person whose promotion was alleged to have been denied or delayed
by the petitioners, has not chosen to invoke the provisions of the
Act. Strictly speaking, any dispute pertaining to inter-se seniority
or the service matter falls outside the purview of the provisions of
the S.C & S.T (PoA) Act. The parliament in its wisdom visualised
the far reaching consequences being faced by the officials who were
entrusted with the work of promotions, might have intentionally
deleted the service matters from the purview of the Act.
22 Viewed from any angle, the association has no locus standi to
fight for the cause related to the service matters. The parliament in
its wisdom excluded the service jurisprudence from the purview of
S.C & S.T (PoA) Act. If the intention of the legislature is otherwise,
certainly, it would have brought the service matters pertaining to
the members of the S.C & S.T community within the purview of the
Act.
23 Having regard to the facts and circumstances of the case and
also the principle laid down in cases cited supra, I am of the
considered opinion that this is a fit case to quash the proceedings
for two reasons viz., a) the allegations made in the complaint do not
constitute the offence alleged to have been committed by the
petitioners under Section 3 (1) (x) of the S.C & S.T (PoA) Act; and b)
entrustment of investigation to the police in Cr.No.242 of 2011 is
nothing short of abuse of process of law. Hence the proceedings in
Crime No.242 of 2011 of Nagarampalem P.S deserve to be quashed.
24 Accordingly, the criminal petitions are allowed and the
proceedings against the petitioners/A1 to A4 in Crime No.242 of
2011 of Nagarampalem P.S are hereby quashed. Miscellaneous
petitions, if any, pending in these petitions shall stand closed.
___________________________
T.SUNIL CHOWDARY, J
01.08.2014.
CRIMINAL PETITION NOs.8269 OF 2011 and batch
01-08-2014
1.N.V. Ramana Raju2.B. Venkatesulu...PETITIONERS
The State of A.P. rep. by Public Prosecutor High Court of A.P, Hyderabad and 3
others.RESPONDENTS
Counsel for Petitioners : Sri N. Ashwani Kumar
Counsel for Respondent Nos.1 to 3: Addl. Public Prosecutor
Counsel for Respondent No.4: Sri Ravi Kumar Mathangi
<GIST:
>HEAD NOTE:
?Cases referred
(2011) 11 SCC 259
2 (2011) 11 SCC 258
3 (2000) 12 SCC 531
4 2012 (1) ALT (Crl.) 240 (A.P)
5 AIR 1960 SC 866
6 AIR 1992 SC 604
7 (1976) 3 SCC 736
8 (2007) 12 SCC 1
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION Nos.8269 and 9066 OF 2011
COMMON ORDER:
1 These two criminal petitions are filed (Crl.P.No.8269 of 2011 by
A1 and A2, and Crl.P.No.9066 of 2011 by A3 and A4) under Section
482 Cr.P.C. to quash the proceedings Cr.No.242 of 2011 of
Nagarampalem Police Station, Guntur District.
2 Since the point involved in both the petitions is one and the
same, I am inclined to dispose of these two petitions by this common
order.
3 The contention of the learned counsel for the petitioners is two
fold, viz., 1) Registration of Crime No.242 of 2011 against the
petitioners under Section 3 (1) (x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not legally
sustainable; and 2) the allegations made in the complaint do not
constitute the offence alleged to have been committed by the
petitioners. Per contra, the learned Additional Public Prosecutor
submitted that the allegations made in the complaint constitute the
alleged offence. The contention of learned counsel for fourth
respondent is that the petitioners have intentionally insulted and
humiliated Dr.Y.Kiran Kumar by delaying promotion to him as he
belongs to Scheduled Caste community.
4 On 22.08.2011, the fourth respondent submitted a complaint to
the Station House Officer, Nagarampalem Police Station who in turn
registered a case in Cr.No.242 of 2011 under section 3 (1) (x) of S.C. &
S.T (Prevention of Atrocities) Act against the petitioners. The fourth
respondent submitted the complaint shouldering the responsibility of
protecting the interest of the employees belonging to the Scheduled
Caste and Scheduled Tribe community. As per the allegations made in
the complaint, the petitioners herein denied promotion to Dr.Y.Kiran
Kumar in time, thereby insulted and humiliated him as he belongs to
Scheduled Caste community.
5 Dr.Y.Kiran Kumar joined as Assistant Civil Surgeon in
Government General Hospital, Guntur on 26.12.1991. He was
promoted as Assistant Professor and joined as such on 06.04.1994 in
the same college. On 15.09.2003, the screening committee approved
and recommended the name of Dr.Y.Kiran Kumar to the post of
Associate Professor and accordingly he was promoted on 06.8.2004.
While he was working as Associate Professor, he was reverted to the
post of Assistant Professor, as per Proc.Rc.No.34388/E1.A/04, dated
9.6.2005 issued by the then Director of Medical Education. Aggrieved
by his reversion, Dr.Y.Kiran Kumar filed O.A.No.7037 of 2007 on the
file of Andhra Pradesh Administrative Tribunal, Hyderabad (hereafter,
APAT), challenging the proceedings dated 09.06.2005. The said O.A.
was allowed by APAT by its order dated 25.04.2006 by setting aside
the Proc. Rc.No.34388/E1.A/04, dated 09.06.2005. Accordingly,
Dr.Y.Kiran Kumar was again promoted as Associate Professor on
05.9.2006. Alleging that he was not properly placed in the seniority
list, Dr.Y.Kiran Kumar filed O.A.No.1777 of 2009 questioning the
proceedings in Rc.No.22163/E-1-A/2006, dated 05.9.2006
whereunder he was promoted. The APAT partly allowed O.A.No.1777
of 2009 by its order dated 13.12.2009 and further held that
promotion of Dr.Y.Kiran Kumar shall be deemed to be from 06.8.2004
i.e., the date on which he was reverted from the post of Associate
Professor. In the order, the respondents therein were directed to
prepare seniority list and finalise the same by circulation, and even
thereafter if Dr.Y.Kiran Kumar had any grievance, he can approach
the respondents.
6 In the above factual background, let me consider the allegations
made in the complaint. It should be remembered that the complaint
was given to the Police by the president of Indian Dalith Employees
Association. It is alleged in the complaint that Accused Nos.1, 3 and
4 were responsible for injustice caused to Dr.Y.Kiran Kumar for
getting promotion in 2004. Accused No.2 harassed Dr.Y.Kiran Kumar
without considering his representations for about eight (8) years i.e.
till his (A2s) retirement on 31.07.2011. The substance of the
complaint is that Dr. Y. Kiran Kumar could not get promotion in time
because the petitioners intentionally delayed the promotion to Dr.Y.
Kiran Kumar as he belongs to Scheduled Caste community.
7 As per Section 2(a) of the Act, atrocity means an offence
punishable under Section 3. According to Oxford English Reference
Dictionary, atrocity means an extremely wicked cruel act especially
one involved physical violence or injury. As per the provisions of the
Act, an act or omission on the part of a person, who does not belong
to Scheduled Caste or Scheduled Tribe, will fall within the definition
of atrocity if the same is punishable under Section 3.
8 In the instant case, the crime has been registered under Section
3 (1) (x) of S.C. & S.T (PoA) Act. The crucial question that falls for
consideration is whether the alleged act of the petitioners will fall
within the ambit of Section 3 of the said Act. Section 3 of the Act
reads as under:
Section 3 - Punishments for offences of atrocities
(1) Whoever, not being a member or a Scheduled Caste or a
Scheduled Tribe, --
(i) forces a member of a Scheduled Caste or a Scheduled
Tribe to drink or eat any inedible or obnoxious
substance;
(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
any other obnoxious substance in his premises or
neighbourhood;
(iii) forcibly removes clothes from the person of
a member of a Scheduled Caste or a Scheduled Tribe or
parades him naked or with painted face or body or
commits any similar act which is derogatory to human
dignity;
(iv) wrongfully occupies or cultivates any land owned by,
or allotted to, or notified by any competent authority to
be allotted to, a member of a Scheduled Caste or a
Scheduled Tribe or gets the land allotted to him
transferred;
(v) wrongfully dispossesses a member of a Scheduled
Caste or a Scheduled Tribe from his land or premises or
interferes with the enjoyment of his rights over any land,
premises or water;
(vi) compels or entices a member of a Scheduled Caste
or a Scheduled Tribe to do 'begar' or other similar forms
of forced or bonded labour other than any compulsory
service for public purposes imposed by Government;
(vii) forces or intimidates a member of a Scheduled
Caste or a Scheduled Tribe not to vote or to vote to a
particular candidate or to vote in a manner other than
that provided by law;
(viii) institutes false, malicious or vexatious suit or
criminal or other legal proceedings against a member of
a Scheduled Caste or a Scheduled Tribe;
(ix) 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;
(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;
(xi) assaults or uses force to any woman belonging to a
Scheduled Caste or a Scheduled Tribe with intent to
dishonour or outrage her modesty;
(xii) being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe
and uses that position to exploit her sexually to which
she would not have otherwise agreed;
(xiii) corrupts or fouls the water of any spring, reservoir
or any other source ordinarily used by members of the
Scheduled Caste or the Scheduled Tribes so as to render
it less fit for the purpose for which it is ordinarily used;
(xiv) denies a member of a Scheduled Caste or a
Scheduled Tribe any customary right of passage to a
place of public resort or obstructs such member so as to
prevent him from using or having access to a place of
public resort to which other members of public or
any section thereof have a right to use or access to;
(xv) forces or causes a member of a Scheduled Caste or
a Scheduled Tribe to leave his house, village or other
place of residence,
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.
(2) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe,--
(i) 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 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;
(ii) 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;
(iii) commits mischief by fire or any explosive substance
intending to cause or knowing it to be likely that he will
thereby cause damage to any property belonging to
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 seven years and with fine;
(iv) commits mischief by fire or any explosive substance
intending to cause or knowing it to be likely that he will
thereby cause destruction of any building which is
ordinarily used as a place of worship or as a place for
human dwelling or as a place for custody of the property
by a member of a Scheduled Caste or a Scheduled Tribe,
shall be punishable with imprisonment for life and with
fine;
(v) commits any offence under the Indian Penal Code
(45 of 1860) punishable with imprisonment for a term of
ten years or more against a person or property on the
ground that such person is a member of a Scheduled
Caste or a Scheduled Tribe or such property belongs to
such member, shall be punishable with imprisonment
for life and with fine;
(vi) knowingly or having reason to believe that an offence
has been committed under this Chapter, causes any
evidence of the commission of that offence to disappear
with the intention of screening the offender from legal
punishment, or with that intention gives any
information respecting the offence which he knows or
believes to be false, shall be punishable with the
punishment provided for that offence; or
(vii) being a public servant, commits any offence under
this section, shall be punishable with imprisonment for
a term which shall not be less than one year but which
may extend to the punishment provided for that offence.
9 A careful scanning of the provisions of Section 3 clearly
demonstrates that the disputes pertain to service matters do not fall
within the purview of Section 3. Promotion to a Government
employee depends upon service conditions and relevant Rules and
Regulations issued from time to time besides his eligibility, seniority
coupled with entries made in Annual Confidential Records. The
promotions from Assistant Civil Surgeon to Assistant Professor and
from Assistant Professor to Associate Professor are governed by
G.O.Ms.Nos.502 HM&FW (A1) Department, dated 13.9.2003 and
G.O.Ms.No.154, HM&FW (A2) Department, dated 04.5.2002. When
promotions were given basing on the assessment made by the
screening committee, prima facie, the petitioners cannot be found
fault with. Even assuming that the entire screening committee has
violated or deviated from the Rules in order to deny promotion to
Dr.Y.Kiran Kumar, then the entire screening committee has to be
found fault with. It is not the case of the fourth respondent that
petitioners have violated certain Regulations, which were in force and
caused injustice to Dr.Y.Kiran Kumar in getting promotion in 2004.
The fact remains that Dr. Y.Kiran Kumar got promotion in the year
2004 itself. But due to the orders of the Andhra Pradesh
Administrative Tribunal (APAT), he was reverted back. It is a known
fact that the Government officials have to implement the orders of the
APAT. Otherwise, they have to face consequences. In order to avoid
the legal consequences, the concerned officials have implemented the
orders of the APAT. There is no specific averment in the complaint
that Dr.Y.Kiran Kumar was eligible to the post of Associate Professor
much prior to August 2004 and at that point of time the petitioners
alone are competent to promote Dr.Y.Kiran Kumar as Associate
Professor.
10 For better appreciation of the rival contentions, it is apt to
mention few admitted facts.
11 A perusal of the record reveals that G.O.Ms.No.154 HM&FW
(A2) Department, dated 04.5.2002 provides guidelines for fixing of
inter-se seniority in the feeder cadre to the post of Assistant Professor
and Associate Professors by following seniority vertically. For one
reason or the other, the State Government has made necessary
amendments to G.O.Ms.No.154 and issued G.O.Ms.No.502, HM&FW
(A1) Department, dated 13.9.2003. As per G.O.Ms.No.502, the inter-
se seniority in the feeder cadre shall be fixed horizontally. The
procedure to be followed for fixing of inter-se seniority in both the
G.Os is diametrically opposite. In the year 2003, the screening
committee recommended and promoted Assistant Professors as
Associate Professors. The Assistant Professors who could not get
promotion, in view of the change of mode of fixing the inter-se
seniority, filed O.As before the APAT, challenging the legality of the
G.O.Ms.No.502 dated 13.09.2003. The said O.As were allowed setting
aside the promotions recommended by the screening committee in the
year 2003. Due to setting aside of the promotions recommended by
the screening committee, consequently it also effected the promotion
given to Dr. Y. Kiran Kumar and others. Therefore, the material
placed before this Court clinchingly establishes the root cause for
setting aside of the promotion of Dr. Y. Kiran Kumar and delay in
giving promotion is due to change of the policy of the Government in
respect of inter-se seniority of Assistant Professors.
12 The crucial question that falls for consideration is whether the
allegations made in the complaint satisfy the basic ingredients of
Section 3(1)(x) of the Act. The Honble apex Court, in Asmathunnisa
Vs. State of Andhra Pradesh , observed as follows:
8. In this connection, learned counsel for the appellant has placed
reliance on a judgment of the Kerala High Court in E. Krishnan
Nayanar v. Dr. M.A. Kuttappan & Others 1997 Crl. L.J. 2036. The
relevant paragraphs of this judgment are paras 12, 13 and 18. The
said paragraphs read as under:
"12. A reading of Section 3 shows that two kinds of insults against the
member of Scheduled Castes or Scheduled Tribes are made punishable - one
as defined under sub-section (ii) and the other as defined under sub-section
(x) of the said section. A combined reading of the two sub-sections shows
that under section (ii) insult can be caused to a member of the Scheduled
Castes or Scheduled Tribes by dumping excreta, waste matter, carcasses or
any other obnoxious substance in his premises or neighbourhood, and to
cause such insult, the dumping of excreta etc. need not necessarily be done
in the presence of the person insulted and whereas under sub-section (x)
insult can be caused to the person insulted only if he is present in view of
the expression "in any place within public view". The words "within public
view", in my opinion, are referable only to the person insulted and not to the
person who insulted him as the said expression is conspicuously absent in
sub-section (ii) of Section 3 of Act 3/1989. By avoiding to use the expression
"within public view" in sub-section (ii), the Legislature, I feel, has created
two different kinds of offences an insult caused to a member of the Scheduled
Castes or Scheduled Tribes, even in his absence, by dumping excreta etc. in
his premises or neighbourhood and an insult by words caused to a member
of the Scheduled Castes or Scheduled Tribes "within public view" which
means at the time of the alleged insult the person insulted must be present
as the expression "within public view" indicates or otherwise the Legislature
would have avoided the use of the said expression which it avoided in sub-
section (ii) or would have used the expression "in any public place".
13. Insult contemplated under sub-section (ii) is different from the insult
contemplated under sub-section (x) as in the former a member of the
Scheduled Castes or Scheduled Tribes gets insulted by the physical act and
whereas is the latter he gets insulted in public view by the words uttered by
the wrongdoer for which he must be present at the place.
xxx xxx xxx
18. As stated by me earlier the words used in sub- section (x) are not "in
public place", but "within public view" which means the public must view the
person being insulted for which he must be present and no offence on the
allegations under the said section gets attracted. In my view, the entire
allegations contained in the complaint even if taken to be true do not make
out any offence against the petitioner".
9. The aforesaid paragraphs clearly mean that the words used are "in
any place but within public view", which means that the public must
view the person being insulted for which he must be present and no
offence on the allegations under the said section gets attracted if the
person is not present.
13 Establishment of the following two conditions is sine qua non to
register the crime under Section 3 (1) (x) of the Act in view of the ratio
laid down in the case cited supra.
i. The person belongs to Scheduled Caste or Scheduled Tribe being
insulted or intimidated in his presence in the name of the caste;
ii. The incident must occur in any place within the public view.
14 As per the principle enunciated in Gorige Pentaiah v. State of
A.P. , D. Santosh Reddy v. S.H.O. of Shamshabad P.S and
U.Sadasivaiah v. State of Andhra Pradesh , if the allegations made in
the complaint or FIR do not satisfy the basic ingredients of Section 3
(1) (x) of the Act, the Court can quash the proceedings by exercising
inherent jurisdiction under Section 482 Cr.P.C.
15 It is an admitted fact that Dr. Y.Kiran Kumar did not lodge the
complaint against the petitioners alleging that the petitioners have
committed the offence under Section 3 (1) (x) of the Act. The fourth
respondent association lodged the complaint alleging as if the
petitioners have intentionally insulted Dr. Y. Kiran Kumar by delaying
his promotion on the sole ground that he belongs to Scheduled Caste
community. There is no allegation in the complaint that the
petitioners have intentionally insulted or intimidated Dr. Y. Kiran
Kumar in his presence in the name of his caste and in a place within
the public view. Even if the allegations made in the complaint ex facie
taken to be true and correct, the petitioners never insulted Dr. Y.
Kiran Kumar in the name of his caste so as to attract the alleged act
of the petitioners within the ambit of Section 3 (1)(x) of the Act. The
substance of the allegations made in the complaint is that the
petitioners herein denied promotions to Dr. Y. Kiran Kumar as he
belongs to Scheduled Caste community. Even assuming but not
admitting the allegations are true and correct, the same will not fall
under anyone of the provisions enumerated under Section 3 of the
Act. When the alleged act of the petitioners is not punishable under
Section 3 of the Act, by any stretch of imagination, it cannot be
presumed that the alleged act of the petitioners will come under the
purview of atrocity as defined under section 2 (a) of the Act.
16 It is a settled principle of law that the Court can quash the
proceedings under section 482 Cr.P.C. in the following circumstances.
i. If the allegations made in the complaint do not constitute any
offence much less the offence alleged to have been committed by
the accused,
ii. If there is a legal bar for registration of the criminal case and
continuation of investigation against the accused.
iii. Even if the allegations made in the complaint ex facie are taken
to be true and correct, the possibility of conviction of the
accused is too remote or bleak,
iv. If the registration of the case and continuation of the
investigation would amount to abuse of process of law; and
v. To secure the ends of justice.
17 The Apex Court in R.P.Kapoor v State of Punjab , held as
hereunder:
"Cases may also arise where the allegations in the F.I.R. or the
complaint even if they are taken at their face value and accepted in
their entirety do not constitute the offence alleged. In such cases, no
question of appreciating evidence arises; it is a matter merely of
looking at the complaint or the First Information Report to decide
whether the offence alleged is disclosed or not. In this case it would
be legitimate to the High Court to hold that it would be manifestly
unjust to allow the process of the criminal court to be issued against
the accused person."
18 In State of Haryana v Bhajanlal the Apex Court after having
surveyed the entire case law on the point has laid down certain
indicia with reference to which, a High Court may in exercise of
powers under Article 226 of the Constitution of India or under
Section 482 Cr.P.C may interfere in proceedings relating to
cognizable offences to prevent abuse of the process of any court or
otherwise to secure the ends of justice.
19 In State of Karnataka v L.Muniswamy , the Supreme Court
observed that the wholesome power under Section 482 Cr.PC
entitles the High Court to quash a proceeding when it comes to the
conclusion that allowing the proceedings to continue would be an
abuse of the process of the court or that the ends of justice require
that the proceedings ought to be quashed.
20 A three-Judge Bench of the Supreme Court in Inder Mohan
Goswami v State of Uttaranchal , after examining the scope and
ambit of Section 482 of the Criminal Procedure Code, observed that
inherent powers under Section 482 should be exercised for the
advancement of justice. If any abuse of the process leading to injustice is
brought to the notice of the Court, then the Court would be fully justified in
preventing injustice by invoking the inherent powers of the Court.
21 Before parting with the order, one has to observe that the
parliament enacted the S.C & S.T (PoA) Act with avowed object to
prevent atrocities against the members of that community. The
scheme of the Act clearly demonstrates that the parliament with an
intention to enhance the social dignity and self respect of the
members of the S.C. & S.T community incorporated various
provisions in the Act. The various provisions of the Act will be a
shield but not a sword. In recent days the number of cases
registered under this Act is increasing day by day, which clearly
manifests the social awareness among the members of the S.C &
S.T. community. The letter and spirit of the constitution of this
country is that a citizen of this country should not claim that he
can do everything as a matter of right without discharging the social
and moral obligations cast on him. Before making an allegation,
one should take reasonable care and caution. Lodging a complaint
by an association without noticing the factual background may
send a wrong signal to the society. The provisions of the Act are
being misused for selfish ends. In the instant case, the possibility of
filing of the present complaint by the association in order to achieve
the object of the Act without verifying the factual background may
not be ruled out. If the association has bestowed its interest prior to
filing of the complaint to the rules and regulations governing the
promotion avenues as well as the inter-se seniority being followed in
the feeder cadre, certainly it would not have ventured to lodge the
complaint. The trauma likely to be undergone, more particularly,
by person at the helm of affairs to be an accused of moral turpitude
on the ground that he has shown discrimination towards down
trodden people, is unfathomable. For one reason or the other, the
person whose promotion was alleged to have been denied or delayed
by the petitioners, has not chosen to invoke the provisions of the
Act. Strictly speaking, any dispute pertaining to inter-se seniority
or the service matter falls outside the purview of the provisions of
the S.C & S.T (PoA) Act. The parliament in its wisdom visualised
the far reaching consequences being faced by the officials who were
entrusted with the work of promotions, might have intentionally
deleted the service matters from the purview of the Act.
22 Viewed from any angle, the association has no locus standi to
fight for the cause related to the service matters. The parliament in
its wisdom excluded the service jurisprudence from the purview of
S.C & S.T (PoA) Act. If the intention of the legislature is otherwise,
certainly, it would have brought the service matters pertaining to
the members of the S.C & S.T community within the purview of the
Act.
23 Having regard to the facts and circumstances of the case and
also the principle laid down in cases cited supra, I am of the
considered opinion that this is a fit case to quash the proceedings
for two reasons viz., a) the allegations made in the complaint do not
constitute the offence alleged to have been committed by the
petitioners under Section 3 (1) (x) of the S.C & S.T (PoA) Act; and b)
entrustment of investigation to the police in Cr.No.242 of 2011 is
nothing short of abuse of process of law. Hence the proceedings in
Crime No.242 of 2011 of Nagarampalem P.S deserve to be quashed.
24 Accordingly, the criminal petitions are allowed and the
proceedings against the petitioners/A1 to A4 in Crime No.242 of
2011 of Nagarampalem P.S are hereby quashed. Miscellaneous
petitions, if any, pending in these petitions shall stand closed.
___________________________
T.SUNIL CHOWDARY, J
01.08.2014.
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