In the instant case, learned A.P.P. Mr. Borade for the
State, from the charge sheet, pointed out that at para 10 of the final
report, the caste of the respondents/ accused was specifically
mentioned as “Lingayat” - non S.C. - S.T. In light of this disclosure
in the charge sheet, it was not open for the learned Judicial
Magistrate, First Class, Biloli to have gone into the merit of the said
allegation by looking at the material extraneous to the charge sheet
i.e. the School Leaving Certificates, Exhibits 27 and 28 tendered by
the accused. In doing so, the learned Magistrate not only
misconstrued the provision of law under Section 209 of the Code of
Criminal Procedure, 1973 but virtually usurped the role of the
Special Court to consider the merit of the charge sheet and the
papers of investigation accompanying it. It was only for the Special
Court to evaluate the merit of the charge sheet vis-a-vis the record
of the case and the documents submitted therewith in order to
answer the pertinent question whether there is or there is no
sufficient ground for proceeding against the applicant/ accused
under Section 227 of the Code of Criminal Procedure
Bombay High Court
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.730 OF 2010
Naograo s/o Babarao Gaikwad, Vs The State of Maharashtra
CORAM : U.D. SALVI, J.
DATED : 16th December, 2011 &
4th January, 2012.
Citation;2013ALL M R (CRI) 86
1. Heard. Perused. Rule. Rule made returnable
forthwith. Taken up for hearing by mutual consent of parties.
2. The petitioner, complainant in F.I.R. No.72/2009 dated
11.7.2009, registered with Biloli Police Station, under Sections 447,
323, 504, 506 read with Section 34 of the Indian Penal Code and
Section 3(1)(v) and (x) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 and Section 7(1)(d) of
the Protection of Civil Rights Act, 1955, has moved this petition for
quashing the orders dated 20.8.2009 below Exhibit 30 and dated
7.7.2010 below Exhibit 35 passed by learned Judicial Magistrate,
First Class, Biloli in R.C.C. No.84/2009 concerning framing of
charges, and for direction to the learned Judicial Magistrate, First
Class for committal of the case to the learned Sessions Court,
Biloli.
3. The complaint dated 11.7.2009, which had prompted
the registration of the crime, reveals allegations that the
respondent Nos.2 to 4 had assaulted and hurled abuses in relation
to the caste of the complainant around 12.00 noon on 9.7.2009 in
the open agricultural field Gat No.212, situated at Kesarali Shivar
belonging to the complainant and had further administered mortal
threats to him. On completion of the investigation, the charge
sheet – Charge Sheet No.60/2009 under Sections 447, 323, 504,
506 read with Section 34 of the Indian Penal Code and Section 3(1)
(v) and (x) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and Section 7(1)(d) of the
Protection of Civil Rights Act, 1955 was lodged in the learned
Judicial Magistrate, First Class, Biloli’s Court on 5.8.2009.
4. It appears that, the accused/ respondent Nos.2 to 4
herein filed true copies of school leaving certificates (Exhibits 27 to
29), showing their caste as “Lingdare” - a caste listed as Sr.No.34
in the Presidential Order passed under Article 34(1) of the
Constitution of India as a scheduled Caste, and the learned
Judicial Magistrate, First Class, on considering the said certificates
passed order dated 20.8.2009, thereby holding that the provisions
of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 were not attracted to the case in hand and as
such, there was no offence which was triable exclusively by the
Sessions Court/ Special Court. Learned Judicial Magistrate, First
Class, Biloli thereafter proceeded to frame charge under Sections
447, 323, 504, 506 read with Section 34 of the Indian Penal Code
read with Section 7(1)(d) of the Protection of Civil Rights Act, 1955
on the same day.
5. At Annexure B to the petition, there is copy of the
application Exhibit 35, dated 18.11.2009 filed by the petitioner for
ordering enquiry in light of the extract of revenue record in Form
No. ‘C’ showing father of the respondents/ accused as a person
belonging to Wani community – non S.C. - S.T. Learned Judicial
Magistrate, First Class, Biloli called for explanation of the
respondent/ accused along with a caste certificate. No explanation
or caste certificate was tendered. However, the respondents/
accused appeared to have filed say Exhibit 41, reiterating their
earlier contentions as persons belonging to Lingdare community –
Scheduled Caste. Learned Judicial Magistrate, First Class, Biloli
recorded the past developments in the proceedings and observed
that it had no right to review the earlier order. The application
Exhibit 35 was thus put to an end on 7.7.2010. Whatever be the
controversy between the parties over the alleged caste of the
accused, the only pertinent question is regarding competency of
the learned Judicial Magistrate, First Class, Biloli to probe into the
merits of the allegations made in the charge sheet and for that
purpose, examine the material presented by either parties i.e. the
material extraneous to the charge and to decide whether the case
is fit to be committed to the Special Court constituted under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 or not.
6. Learned Advocate Mr. Suryawanshi for the petitioner
submitted that under Section 209 of the Code of Criminal
Procedure, 1973 the Magistrate has merely to ascertain whether
the case as disclosed by the charge sheet appears to him to be an
offence triable exclusively by the Special Court, and it is not open
to him to evaluate the merit of such disclosures. For this purpose,
he relied on the judgment of Gauhati High Court, reported in 1990
CRI.L.J. 6 :- State of Assam Vs. Hit Ram Deka. Learned Advocate
Mr. Godhamgaonkar for the contesting respondent Nos.2 to 4
submitted that neither the F.I.R. dated 11.7.2009 nor the
statements of the witnesses recorded in the course of investigation
made any disclosure regarding the caste of any of the accused and
as such, no wrong was committed by the learned Judicial
Magistrate, First Class in answering the question regarding the
caste of the accused, which is a material ingredient of the offence/s
under Section 3(1)(x) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, from the material
produced by the respondents/ accused.
7. Section 209 of the Code of Criminal Procedure, 1973,
which governs the committal proceedings before the Magistrate,
reads as under :
“209. When in a case instituted on a police report
or otherwise, the accused appears or is brought
before the Magistrate and it appears to the
Magistrate that the offence is triable exclusively by
the Court of Sessions, he shall
(a) commit, after complying with the provisions of
Section 207 or Section 208, as the case may be, the
case to the Court of Session, and subject to the
provisions of this Code relating to bail, remand the
accused to custody until such commitment has been
made;
(b) subject to the provisions of this Code relating
to bail, remand the accused to custody during, and
until the conclusion of, the trial;
(c) send to that Court the record of the case and
the documents and articles, if any, which are to be
produced in evidence;
(d) notify the Public Prosecutor of the commitment
of the case to the Court of Session.”
Key phrase in the said provision is “it appears to the Magistrate”. It
does not connote any further enquiry necessary for satisfaction of
the Magistrate. The Magistrate has only to ascertain as to what the
charge sheet has to disclose and if on its plain reading it appears to
the judicial mind of the Magistrate that there exists an offence
triable exclusively by a Court of Session, herein the Special Court,
then he has no option but to commit the case to such Court. The
Single Bench of the Gauhati High Court was of the same view as
entertained by this Court in the following words :-
The Single Bench of the Gaunati High Court in Hit Ram
Deka’s case voiced the same views as in the following words :-
“The expression ‘it appears to the Magistrate’ does
not connote satisfaction of the Magistrate. The
normal connotation of the word appear ‘it seems’
or ‘to be in one’s opinion’. Mere opinion of the
Magistrate must prevail. It does not depend upon
the fact of sufficiency or insufficiency of the
material. There is no scope for a formal inquiry
except to comply the formalities of Section 207 or
208, as the case may be, and shall formally
commit the case to the Court of Sessions.”
8. In the instant case, learned A.P.P. Mr. Borade for the
State, from the charge sheet, pointed out that at para 10 of the final
report, the caste of the respondents/ accused was specifically
mentioned as “Lingayat” - non S.C. - S.T. In light of this disclosure
in the charge sheet, it was not open for the learned Judicial
Magistrate, First Class, Biloli to have gone into the merit of the said
allegation by looking at the material extraneous to the charge sheet
i.e. the School Leaving Certificates, Exhibits 27 and 28 tendered by
the accused. In doing so, the learned Magistrate not only
misconstrued the provision of law under Section 209 of the Code of
Criminal Procedure, 1973 but virtually usurped the role of the
Special Court to consider the merit of the charge sheet and the
papers of investigation accompanying it. It was only for the Special
Court to evaluate the merit of the charge sheet vis-a-vis the record
of the case and the documents submitted therewith in order to
answer the pertinent question whether there is or there is no
sufficient ground for proceeding against the applicant/ accused
under Section 227 of the Code of Criminal Procedure.
9. As regards the merit of the disclosures in the F.I.R.,
learned Advocate Mr. Suryawanshi for the petitioner cited the
following judgments :
1) 2009(3) SCC 789 :- Ashabai Machindra Adhagale Vs.
State of Maharashtra & ors.
2) 2009(3) Mh.L.J. 489 :- Pushpa Vijay Bonde Vs.
State of Maharashtra.
In both the cases, non mentioning of the caste of accused in F.I.R.
was not considered fatal to the case under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Disclosures in the course of investigation ultimately spell out the
tenability of such case in law. However, rationale in the said cases
is of little assistance in interpreting the provisions of Section 209 of
the Code of Criminal Procedure, which is applicable in the present
case.
10. In view of the aforesaid discussion, the impugned
orders deserve to be set aside. Rule is, therefore, made absolute
in terms of prayer clause (C). Order dated 7.7.2010, passed by the
learned Judicial Magistrate, First Class, Biloli below application
Exhibit 35 in R.C.C. No.84/2009 is set aside. Learned Judicial
Magistrate, First Class, Biloli is directed to take steps for committal
of the said case to the Special Court constituted under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 in accordance with law. Criminal Writ Petition
No.730/2010 stands disposed off accordingly.
Sd/-
( U.D. SALVI, J. )
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