This is an application for quashing of B.G.R. Case No. 1099/07 now pending before the Learned Additional Chief Judicial Magistrate at Alipore, 24- Parganas (South), arising out of Jadavpur Police Station Case No. 165 (4)/07 relating to offences punishable under Section 3 (1)(viii)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 120B of the Indian Penal Code.
2. On the basis of a written complaint made to the Chief Judicial Magistrate, Alipore, 24-Parganas (South) by the opposite party no. 2 herein alleging commission of offences punishable under Section 3 (1)(viii)(x) and Section 6 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 120B of the Indian Penal Code against the petitioner and others, the Learned Magistrate in exercise of power conferred under Section 156 (3) of the Code of Criminal Procedure referred the same to the Officer-in- Charge, Jadavpur Police Station directing to treat the said complaint as FIR and to cause investigation. Whereupon Jadavpur Police Station Case No. 165 of 07 under Section 3 (1)(viii)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 120B of the Indian Penal Code was registered.
However, the police after completion of investigation submitted final report and prayed for discharge of the accused person from the said case. Upon receipt of the final report the Learned Court below issued notice to the defacto-complainant, i.e. the opposite party no. 2 herein and in response thereof the opposite party no. 2 appeared in court and filed Naraji petition.
When after hearing the parties and considering the naraji petition, the Learned Chief Judicial Magistrate, Alipore disagreeing with the conclusion arrived at by the Investigating Agency took cognizance under Section 190 (1)(b) of the Code of Criminal Procedure, on the said police report i.e. the final report. The Learned Magistrate took cognizance of offences punishable under Section 3 (1)(viii)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 120B of the Indian Penal Code. Hence, this criminal revision.
3. Mr. Debobrata Roy, the Learned Counsel appearing on behalf of the petitioner vehemently urged that on the face of the allegations made in the First Information Report as well as those appearing from the statement of the witnesses recorded under Section 161 of the Code of Criminal Procedure no case as regards to the commission of the alleged offence has been made out against the present petitioner and as such the Investigating Agency had very rightly submitted final report praying for his discharge from the case. According to him there is no scope of taking cognizance of the alleged offences on such final report and the impugned proceeding is liable to be quashed. In support of his contention Mr. Roy relied on the following decisions; (i) Swaran Singh & Ors. Vs. State through Standing Counsel & Anr., reported in (2008) 8 SCC 435, (ii) Ms. Subhadra Sushil Anand & Ors. Vs. State of Maharashtra & Anr., reported in 2008 Cri. L. J. 672 and another decision of this court in C.R.R. No. 3960 of 2007 relating to the case of S.K. Devanath @ Sampangi & Ors. Vs. The State of West Bengal & Anr. He further submitted so far as the present petitioner is concerned the only allegation against him is that, he has not taken any action against the students and other teaching staffs of the University for allegedly maligning and humiliating the defacto-complainant. According to Mr. Roy the departmental enquiry, in which the wife of the defacto-complainant Baishaki Banerjee was allegedly asked several alleged embarrassing and derogatory questions was admittedly held inside the chamber of the Registrar Jadavpur University and is not within the public view. Moreover she was asked nothing to insult and humiliate the defacto-complainant. Mr. Roy further asserted that although there has been various allegations of commission of the offence but no basic facts which constitute such offences has been disclosed either in the FIR or in the statement of the witnesses.
4. On the other hand, Mr. Sudipto Moitra, the Learned Counsel appearing for the opposite party no. 2 submitted in the instant case police has made a perfunctory investigation and although on the materials disclosed during the investigation a definite case has been made out against the petitioner and other accused persons police still submitted final report praying for their discharge. According to him the Learned Magistrate has very rightly took cognizance on the purported final report, the content whereof has clearly made out the commission of the offences against the petitioner and others. Mr. Moitra in support of his contention relied on a decision of the Hon'ble Andhra Pradesh High Court in the case of E. Tirupem Reddy Vs. Deputy Superintendent of Police, Nandyal & Ors., reported in 2006 Cri. L. J. 1606. He further submitted in an enquiry held on February 23, 2007 on the basis of a complaint lodged by the accused/petitioner against some students in presence of others, the present petitioner who was holding the said enquiry asked him many humiliating and embarrassing questions and also asked whether he suffered any depression or problems due to the fact he belongs to a scheduled caste community. It appears from the manner in which such questions were asked as if the petitioner committed any offence. This attitude of the petitioner clearly indicates that he disliked continuation of his service at Jadavpur University. According to Mr. Moitra subsequently in connection with an enquiry the wife of the defacto-complainant/opposite party no. 2, Mrs. Baishakhi Banerjee was summoned and in the said enquiry held on 6th March, 2007 at his chamber the present petitioner asked her various humiliating and embarrassing questions about the personal life of the opposite party no. 2 and was trying to indicate that he was suffering from mental depression.
5. It appears from the perusal of the impugned order that the Learned Magistrate find that police did not pay any heed to the statement of the wife and mother-in-law of the defacto-complainant and on the allegations made in the First Information Report but gave much preference to the statement of the Assistant Registrar of the said University who happened to be a subordinate of the accused persons. The Learned Magistrate further found there was inordinate delay in completion of the investigation and although initially the Investigating Officer felt it necessary to collect the specimen handwriting of the students but finally did not take any step for the same.
6. The provisions of Section 3 (1)(viii) and (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, hereinafter referred to as "the said Act", are read as follows;
3 (1) Whoever, not being a member of a Scheduled Castes or Scheduled Tribes,
(i),
(ii),
(iii),
(iv),
(v),
(vi),
(vii),
(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),
(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),
(xii),
(xiii),
(xiv),
(xv),
7. Now from a bare reading of the aforesaid provisions of Section 3 (1)(viii) of the said Act, it is abundantly clear that there are two basic ingredients of the said offence, firstly, there must be a suit or criminal or any other legal proceeding against any member of Scheduled Castes or Scheduled Tribes, instituted by any person who is not a Scheduled Castes or Scheduled Tribes and Secondly, such suit or criminal or any other legal proceeding so instituted must be false, malicious or vexatious. Thus, there is no scope to prosecute anyone not being a member of Scheduled Castes or Scheduled Tribes, under the aforesaid provisions without it first being shown that a suit or criminal or other legal proceeding so instituted against any member of Scheduled Castes or Tribes is false, malicious or vexatious. In my opinion, there is hardly any scope of launching of any prosecution under Section 3 (1)(viii) of the said Act against any non-scheduled Caste or Scheduled Tribe on mere institution of a suit or criminal or any other legal proceeding against any member of Scheduled Caste or Scheduled Tribe, and on the bare allegations the same was instituted falsely, maliciously or vexatiously till such suit or criminal or legal proceeding reaches its logical conclusion on a finding that the said suit or criminal or legal proceeding in question was false, malicious or vexatious. In the case in hand, I do not find there is any allegation of institution of any suit or criminal or other legal proceeding against the complainant by the petitioner far less any allegation that the same was instituted falsely, maliciously or vexatiously. There is also no allegation that any suit or criminal or other legal proceeding instituted against the complainant by the petitioner has been found to be false, malicious or vexatious. The enquiry held in March, 2007, where the wife of the present petitioner Mrs. Baishakhi Banerjee was summoned was instituted on the complaint of the complainant/opposite party no. 2 against some students who allegedly misbehaved with him but that was not an enquiry or a legal proceeding instituted against the opposite party no. 2, a member of the Scheduled Castes on a false, vexatious and malicious charge far less by the present petitioner. Similarly, the departmental enquiry which was started against the complainant, in May, 2007 for his alleged misconduct upon his refusal to return the answer scripts of examination of PG I and PG II students was instituted by the vice- chancellor of Jadavpur University not by the present petitioner. Accordingly, on the face of the evidentiary material collected by the police during investigation and on the allegation made in the First Information Report, as the basic ingredients of the offence punishable under Section 3 (1)(viii) of the said Act is found missing, no case for the alleged offences can said to have been made out against the petitioner.
8. Similarly to make out any offence punishable under Section 3 (1)(x) of the said Act, all that is required, Firstly, there must be prima facie materials to show that a member of the Scheduled Castes or Scheduled Tribes is intentionally insulted or intimidated with an intention to humiliate him by a person who is not a Scheduled Caste or Scheduled Tribe and Secondly, such intentional insult or intimidation must be made in any place within public view.
9. Now the only question left for decision whether on the face of the allegations contained in the First Information Report and the materials collected by the police any offence punishable under Section 3 (1)(x) of the said Act has been made out against the petitioner or not.
10. It is the allegations in the First Information Report that the present petitioner, who is a member of Scheduled Caste is a lecturer in English at Jadavpur University and at the University he was allegedly in various way humiliated, harassed and insulted by the students and the members of the teaching profession, i.e. his colleagues. The complainant was also ill-treated and humiliated by them as he was a Scheduled Caste, similarly students also dishonoured and insulted him made obscene remarks in the answer scripts and on February 8, 2007 he was locked inside a toilet by some students. When in spite of several complaints being made to him against those wrongdoer, the petitioner did not take any step against them and all the complaints made to him by the defacto-complainant remain unattended.
It is further alleged on February 23, 2007, the defacto-complainant was summoned by the present petitioner and he asked him various humiliating and taunting questions inasmuch as whether the defacto-complainant suffered from depression or he had any problem because he belongs to the Scheduled Caste community. It was also alleged the attitude of the accused no. 4, the petitioner herein clearly indicated that he did not like the complainant to continue in service at Jadavpur University.
Subsequently, the petitioner was asked in writing by the Head of the Department, Swapan Chakraborty, another accused not to conduct any examination in the department until further order and such direction was made at the instance of those students against whom he lodged complaint to the present petitioner, the accused no. 4. At this the petitioner felt terribly humiliated and insulted and he also fell ill in front of the accused no. 4, i.e. the petitioner herein but no medical aid was provided.
Thereafter, a purported enquiry committee was constituted by the University authority without following all norms and guidelines prescribed by the statutory rules.
Further the accused no. 4 by conducting a purported enquiry called the wife of the petitioner Mrs. Baishakhi Banerjee and the petitioner asked her several embarrassing and derogatory questions regarding the opposite party no. 2.
11. I have also perused the statement of Baishakhi Banerjee, the wife of the defacto-complainant Mrs. Sova Banerjee, mother-in-law of the defacto- complainant as well as that of the Tapan Biswas, Assistant Registrar of Jadavpur University and I find as follows;
(a) In her statement Baishakhi Banerjee alleged against the petitioner that he did not take any action on the complaints of the defacto- complainant, i.e. the opposite party no. 2 made against his colleagues Swapan Chakraborty, Nilanjana Gupta, Ipsita Chanda and few other students who were harassing and humiliating him in various ways. According to her the colleagues of the defacto-complainant used to ill-treat her mentally as he belongs to Scheduled Caste. It was her further allegation the petitioner at the enquiry asked her several irrelevant questions and also harassed her. (b) While Sova Banerjee alleged as the opposite party no. 2 is a Scheduled Caste he was humiliated in various ways at the university both by his colleagues and the students but inspite of repeated complaint made to the petitioner no step was taken against them.
(c) The Assistant Registrar of Jadavpur University, Mr. Tapan Biswas made following statement;
According to him at Jadavpur University there was no division over the issue of caste and creed. He also belongs to Scheduled Caste community. The complainant is not competent to teach the students and for that on many occasions students made complaints against him. The defacto- complainant/opposite party no. 2, Manojit Mondal received total 25 answer scripts for examination but inspite of repeated requests even after long expiry of the scheduled period he did not return those answer scripts and consequently no result could be published. The defacto-complainant also in writing intimated the vice-chancellor, Jadavpur University that he would not return the said answer scripts and consequently he was placed under suspension and a departmental enquiry was initiated against him.
12. Thus, considering the allegations made in the First Information Report as well as the statement of the witnesses recorded during investigation and accepting those allegations to be true on its face value, I find that the allegations against the present petitioner are as follows; (a) He did not take any steps against the students and the professors who were ill-treating the petitioner in various ways as because he hails from Scheduled Caste community.
(b) The petitioner in a meeting humiliated the opposite party no. 2 by asking him whether he suffered from any depression or had any problem because he belongs to the Scheduled Caste community.
(c) Once the defacto-complainant became sick due to the ill- treatment meted out to him by his colleagues and students the petitioner did not take any steps for providing him medical aid.
(d) A purported enquiry committee was constituted ignoring all legal requirements.
(e) According to the wife of the petitioner Mrs. Baishakhi Banerjee in March, 2007 in connection with an enquiry she was summoned by the present petitioner and the petitioner asked her several irrelevant questions and harassed her. It is her firm belief that her husband was tortured at Jadavpur University at the instance of the petitioner.
(f) According to the Assistant Registrar of Jadavpur University Mr. Tapan Biswas, who is a member of Scheduled Caste community, as the opposite party no. 2, Manojit Mondal was not efficient and competent to teach the students, on many occasions the students made complaint against him. The said opposite party no. 2 received total 25 answer scripts for evaluation but in spite of repeated requests made by the authority he did not return the same even after expiry of the schedule date. The opposite party no. 2/the defacto- complainant in his letter addressed to the vice-chancellor of Jadavpur University refused to return those answer scripts. Thereafter, he was placed under suspension and a departmental proceeding was instituted against him.
13. The mere allegation the petitioner has not taken any action against the colleagues of the defacto-complainant and the students who allegedly harassed and humiliated him in different ways by no means attract the penal consequences of Section 3 (1)(x) of the Said Act, when there is no allegation against the petitioner that he himself insult or intimidate with intent to humiliate the defacto-complainant, who is a member of Scheduled Castes. It was the allegation that on February, 23, 2007 the opposite party no. 2 was summoned by the petitioner and the petitioner asked the opposite party no. 2 whether he was suffering from depression or had any problem because he belongs to Scheduled Castes community. In my opinion, asking a member of Scheduled Castes community whether he was suffering from depression or had any problem because he is a Scheduled Castes, does not in anyway amount to either intentional insult or intimidation of a Scheduled Caste with an intent to humiliate him and even it is accepted to be true that the petitioner did not like that the defacto-complainant a member of the Scheduled Castes shall remain in Jadavpur University, neither such "asking" or "dislike" bring the case within the mischief of Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Top of everything even assuming by such question the petitioner intended to insult or intimidate the opposite party no. 2 to humiliate him still in absence of any allegation that such an incident happened in a place within the public view there is no question of commission of any offence punishable under Section 3 (1)(x) of the said Act. Similarly, on the allegation that on being humiliated by the others the opposite party no. 2 fell ill and the petitioner has not arranged for any medical aid for him also does not make out the alleged offence.
The allegations at an enquiry started against some students on the complaint of the opposite party no. 2, his wife Mrs. Baishakhi Banerjee was summoned by the petitioner and the petitioner asked her several embarrassing and derogatory questions regarding the opposite party no. 2 coupled with the further allegations made by Mrs. Baishakhi Banerjee that at the said enquiry the present petitioner asked her several irrelevant questions and harassed her, in my opinion also does not make out any offence punishable under Section 3 (1)(x) of the said Act. While making those allegations it has nowhere been disclosed either by the opposite party no. 2 or by Mrs. Baishakhi Banerjee what was the exact questions that was asked by the petitioner and in absence thereof, there cannot be said by asking those alleged derogatory and irrelevant questions the petitioner intended to insult or humiliate the defacto-complainant who is a member of the Scheduled Castes community. It was not the case of the opposite party no. 2 that at the time when such question was put to her wife he was also present there. Therefore, the question of either insulting or intimidating a member of the Scheduled Castes also does not arise. In any event, if his wife is harassed by the petitioner although it has not been disclosed in what manner she was harassed, she not being a member of Scheduled Caste the question of commission of an offence punishable under Section 3 (1)(x) of the said Act does not at all arise. Top of everything there is no allegation in the First Information Report or in the statement made by Mrs. Baishakhi Banerjee the place where such enquiry was held and she was questioned by the present petitioner that was a place within the public view. Mr. Moitra during his submission before this Court made vigorous attempt to submit that the place where enquiry was held, that was within the public view but in absence of any such allegation in the First Information Report or in the statement of Mrs. Baishakhi Banerjee, I am not ready to accept such submission of Mr. Moitra. I am of the opinion the petitioner has not also been able to make out any case on the face of the allegations made in the First Information Report as well as by the statement of his wife Mrs. Baishakhi Banerjee any offence punishable under Section 3 (1)(viii) and Section 3 (1)(x) of the said Act.
Last but not least, the statement of Mr. Tapan Biswas recorded during the investigation of the case, who happened to be the Assistant Registrar of Jadavpur University and a member of the Scheduled Caste community is very relevant in this context. Mr. Biswas in his statement categorically stated that in their University there is no division over the issue of caste and creed and a departmental enquiry has been initiated against the opposite party no. 2 as he refused to return the answer scripts which were given for evaluation to him by the university authority.
In the result the instant criminal revision succeeds and the impugned order as well as the proceedings in question stands quashed. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
