Ashabai Machindra Adhagale vs State Of Maharashtra & Ors

Ashabai Machindra Adhagale .....Appellant

Versus

State of Maharashtra and Ors. ....Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. An interesting question of law arises in this appeal. Background facts

in a nutshell are as follows:

Appellant filed First Information Report (in short the `FIR') under

Section 154 of the Code of Criminal Procedure, 1973 (in short the `Code') at Newasa Police Station, District Ahmednagar, alleging commission of

offence punishable under Section 3(1)(xi) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short the `Act').

A petition under Section 482 of Code was filed by respondent No.3

(hereinafter referred to as the `accused'). The basic stand was that in the FIR

the caste of accused was not mentioned and therefore the proceedings

cannot be continued and deserved to be quashed. The High Court placing

reliance on earlier decisions of the High Court allowed the petition.

3. In support of the appeal, learned counsel for the appellant submitted

that the view taken by the Bombay High Court is contrary to one taken by

the Orissa High Court. It is submitted that the offence primarily relates to

purported perpetration of crime on the victim because of his or her caste. It

is for the accused to show that he does not belong to higher caste and that is

a matter of evidence. It is not that in the instant case there was no reference

to the caste of an accused as it is clearly mentioned in the FIR that the

offence is relatable to Section 3(1)(xi) of the Act. Therefore, there is a

reference though indirectly to the caste of the accused. Even otherwise it is

submitted that the non-mention of the caste of the accused cannot be a

ground to quash the proceedings. At the framing of charge or in case the

2 charge sheet is filed and/or during trial the accused can establish that he

does not belong to higher caste. It is submitted that FIR is not an

encyclopedia of all events and basic ingredients of offence are clearly made

out.

4. Learned counsel for respondent No.3, on the other hand, submitted

that Section 3(1) itself provides that the offence should have been

committed by a person who is not a member of the Scheduled Caste or

Scheduled Tribe, unless that specific mention is made no offence is

disclosed.

5. Learned counsel for the respondent referred to various judgments of

Bombay High Court in this regard supporting his stand. e.g. Manohar S/o

Martandrao Kulkarni and Anr. v. State of Maharashtra and Ors. (2005 (4)

Mh.L.J. 588)

6. It is also submitted that the complainant i.e. the appellant is harassing

people by filing frivolous petitions taking shelter of the fact that she belongs

to scheduled caste. Therefore, placing strong reliance on the observations of

this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335), it is

3 submitted that the proceedings deserved to be quashed which according to

him the High Court rightly did.

7. In Superintendent of Police, CBI and Ors. v. Tapan Kumar Singh

(2003 (6) SCC 175) this Court elaborately dealt with the need of an FIR. It

was inter-alia observed as follows:

"20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation

4 and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.

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22. The High Court has also quashed the GD entry and the investigation on the ground that the information did not disclose all the ingredients of the offence, as if the informant is obliged to reproduce the language of the section, which defines "criminal misconduct" in the Prevention of Corruption Act. In our view the law does not require the mentioning of all the ingredients of the offence in the first information report. It is only after a complete investigation that it may be possible to say whether any offence is made out on the basis of evidence collected by the investigating agency."

5 8. Similarly, in Masumsha Hasanasha Musalman v. State of Maharashtra

(2000 (3) SCC 557), this Court noted that with reference to Section 3(2)(v)

of the Act that to attract the provisions of said section 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, 1860 (in

short `IPC') is committed against him on the basis that such a person

belongs to a Scheduled Caste or a Schedule Tribe. In the absence of such

ingredients no offence under Section 3(2)(v) of the Act arises. The view in

Masumsha's case (supra) was reported in Dinesh @ Buddha v. State of

Rajasthan (2006 (3) SCC 771).

9. The scope for interference on the basis of an application under

Section 482 of Code is well known.

10. Section 482 does not confer any new powers on the High Court. It

only saves the inherent power which the Court possessed before the

enactment of the Code. It envisages three circumstances under which the

inherent jurisdiction may be exercised, namely, (i) to give effect to an order

under the Code (ii) to prevent abuse of the process of court, and (iii) to

otherwise secure the ends of justice. It is neither possible nor desirable to

lay down any inflexible rule which would govern the exercise of inherent

6 jurisdiction. No legislative enactment dealing with procedure can provide

for all cases that may possibly arise. Courts, therefore, have inherent powers

apart from express provisions of law which are necessary for proper

discharge of functions and duties imposed upon them by law. That is the

doctrine which finds expression in the section which merely recognizes and

preserves inherent powers of the High Courts. All courts, whether civil or

criminal possess, in the absence of any express provision, as inherent in

their constitution, all such powers as are necessary to do the right and to

undo a wrong in course of administration of justice on the principle "quando

lex aliauid alicui concedit, concedere videtur et id sine guo res ipsae esse

non potest" (when the law gives a person anything it gives him that without

which it cannot exist). While exercising powers under the section, the court

does not function as a court of appeal or revision. Inherent jurisdiction

under the section though wide has to be exercised sparingly, carefully and

with caution and only when such exercise is justified by the tests

specifically laid down in the section itself. It is to be exercised ex debito

justitiae to do real and substantial justice for the administration of which

alone courts exist. Authority of the court exists for advancement of justice

and if any attempt is made to abuse that authority so as to produce injustice,

the court has power to prevent abuse. It would be an abuse of process of the

7 court, to allow any action which would result in injustice and prevent

promotion of justice, on exercise of the powers court would be justified to

quash any proceeding if it finds that initiation/continuance of it amounts to

'abuse of the process of court or quashing of these proceedings would

otherwise serve the ends of justice. When no offence is disclosed by the

report, the court may examine the question of fact. When a report is sought

to be quashed, it is permissible to look into the materials to assess what the

report has alleged and whether any offence is made out even if the

allegations are accepted in toto.

11. In R.P. Kapur v. State of Punjab AIR 1960 SC 866 this Court

summarized some categories of cases where inherent power can and should

be exercised to quash the proceedings.

(i) where it manifestly appears that there is a legal bar against

the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or

complaint taken at its face value and accepted in their entirety

do not constitute the offence alleged;

8 (iii) where the allegations constitute an offence, but there is no

legal evidence adduced or the evidence adduced clearly or

manifestly fails to prove the charge.

12. In dealing with the last category, it is important to bear in mind the

distinction between a case where there is no legal evidence or where there is

evidence which is clearly inconsistent with the accusations made, and a case

where there is legal evidence which, on appreciation, may or may not

support the accusations. When exercising jurisdiction under Section 482 of

the Code the High Court would not ordinarily embark upon an enquiry

whether the evidence in question is reliable or not or whether on a

reasonable appreciation of it accusation would not be sustained. That is the

function of the trial Judge. Judicial process should not be an instrument of

oppression, or, needless harassment. Court should be circumspect and

judicious in exercising discretion and should take all relevant facts and

circumstances into consideration before issuing process, lest it would be an

instrument in the hands of a private complainant to unleash vendetta to

harass any person needlessly. At the same time the section is not an

instrument handed over to an accused to short-circuit a prosecution and

bring about its sudden death. The scope of exercise of power under Section

482 of the Code. and the categories of cases where the High Court may

9 exercise its power under it relating to cognizable offences to prevent abuse

of process of any court or otherwise to secure the ends of justice were set

out in some detail by this Court in State of Haryana v. Bhajan Lal (1992

Supp (1) 335). A note of caution was, however, added that the power should

be exercised sparingly and that too in rarest of rare cases. The illustrative

categories indicated by this Court are as follows:

"(1) 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.

(2) Where the allegations in the first information report and

other materials, if any, accompanying the FIR do not disclose a

cognizable offence, justifying an investigation by police

officers under Section 156 (1) of the Code except under an

order of a Magistrate within the purview of Section 155 (2) of

the Code.

(3) Where the uncontroverted allegations made in the FIR or

complaint and the evidence collected in support of the same do

10 not disclose the commission of any offence and make out a

case against the accused.

(4) Where the allegations in the FIR do not constitute a

cognizable offence but constitute only a non-cognizable

offence, no investigation is permitted by a police officer

without an order of a Magistrate as contemplated under Section

155 (2) of the Code.

(5) Where the allegations made in the FIR or "complaint are so

absurd and inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there is

sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the

provisions of the Code or the Act concerned (under which a

criminal proceeding is instituted) to the institution and

continuance of the proceedings and/or where there is a specific

provision in the Code. or Act concerned, providing efficacious

redress for the grievance of the aggrieved party.

11 (7) Where a criminal proceeding is manifestly attended with

mala fide and/or where the proceeding is maliciously instituted

with an ulterior motive for wreaking vengeance on the accused

and with a view to spite him due to private and personal

grudge."

13. As noted above, the powers possessed by the High Court under

Section 482 of the Code are very wide and the very plenitude of the power

requires great caution in its exercise. Court must be careful to see that its

decision in exercise of this power is based on sound principles. The inherent

power should not be exercised to stifle a legitimate prosecution. The High

Court being the highest court of a State should normally refrain from giving

a prima facie decision in a case where the entire facts are incomplete and

hazy, more so when the evidence has not been collected and produced

before the Court and the issues involved, whether factual or legal, are of

magnitude and cannot be seen in their true perspective without sufficient

material. Of course, no hard and fast rule can be laid down in regard to

cases in which the High Court will exercise its extraordinary jurisdiction of

quashing the proceeding at any stage. (See State of Orissa v. Saroj Kumar

Sahoo (2005) 13 SCC 540 and Minu Kumari v. State of Bihar AIR 2006 SC

1937).

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14. It needs no reiteration that the FIR is not expected to be an

encyclopedia. As rightly contended by learned counsel for the appellant

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 under

Section 23(1) of the Act, the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Rules, 1995 (in short the `Rules') have been

framed.

15. Rule 7 deals with the investigating officer. Under Rule 7

investigation has to be done by an officer not below the rank of Deputy

Superintendent of Police.

16. After ascertaining the facts during the course of investigation it is

open to the investigating officer to record that the accused either belongs to

or does not belongs to scheduled caste or scheduled tribe. After final

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 the accused to bring to the notice of the Court that

the materials do not show that the accused does not belong to scheduled

13 caste or scheduled tribe. 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.

17. So far as the scope for investigation is concerned it is relevant to note

that sub-Section (2) of Section 156 of the Code provides that no

proceedings of a police officer in any such case shall at any stage be called

in question on the ground that the case was one which such officer was not

empowered under the section to investigate. (underlined for emphasis).

18. Above being the position, the view taken by the Bombay High Court

does not appear to be the correct view while that of the Orissa High Court is

the correct view. Accordingly, we allow this appeal. Needless to say during

investigation or at the time of framing of charge or at the time of trial it is

open to respondent No.3 to show that he either belongs to scheduled caste

or scheduled tribe so that applicability of Section 3(1)(xi) of the Act is

ruled out.

..........................................J. (Dr. ARIJIT PASAYAT)

14 ..........................................J. (Dr. MUKUNDAKAM SHARMA)

..........................................J. (H.L. DATTU)

New Delhi, February 12, 2009

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