Bhuvan Kant vs State of Himachal Pradesh and another

The petitioner is accused and has been charged for having committed an offence punishable under Section 7 (c) of the Protection of Civil Rights Act, 1955 (for short ''Act of 1955'') and has filed the instant revision petition for quashing such proceedings.

The case of the prosecution, in brief, is that one Gian Chand, respondent No.2 herein, filed an application under Section 156(3) Cr.P.C. before the learned Magistrate on 25.9.2014 for direction to the police to lodge FIR under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ''Atrocities Act'') claiming therein that there was an act of discrimination amongst the students in the school at the time when they are being distributed the mid day meal inasmuch as the students of the general category are being served food first and only thereafter the same is served to the students belonging to the reserved category.

On 26.9.2014, the learned Magistrate directed the SHO, Police Station, Padhar, District Mandi to lodge FIR. In pursuance to such direction, FIR No. 85 of 2014 was registered. Earlier to that, detailed inquiries qua these very allegations were conducted by the Deputy Director Elementary Education as well as Additional District Magistrate, Mandi and both these officers did not find any iota of truth in these allegations. However, as regards the aforesaid FIR, the investigations were carried out and ultimately a final report came to be filed under Section 7 (c) of the Act of 1955 .

On 15.3.2017 the learned trial Court framed the following charge: "That during the year 2014 at Govt. Middle School, Nehar Chahal you accused incites and encourages the other members of school by making the students of particular class belonging to schedule caste to sit separately from the "Sawaran" categories of caste during the meal times in the school as well as by feeding the "Sawaran" categories first then the schedule caste category thereby directly and indirectly preaches untouchability and thereby committed an offence punishable under Section 7 (c) of Protection of Civil Right Act, 1955 and within cognizance of this Court."

Aggrieved by the aforesaid charge and consequential proceedings initiated on the basis thereof, the petitioner approached this Court by invoking the provisions of Section 401 read with Section 482 Cr.P.C.

It is vehemently argued by Mr. B.L.Soni, learned counsel for the petitioner that in case the entire material collected by the prosecution is perused, even then no case whatsoever is made out against the petitioner and, therefore, on this ground alone, the proceedings deserve to be quashed. In addition thereto, he would vehemently argue that in absence of sanction as required under Section 15 (2) of the Act of 1955, no criminal proceedings could have been launched / initiated against the petitioner. I have heard learned counsel for the parties and have gone through the records of the case carefully.

It is a trite that at the stage of framing of charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients, constituting the alleged offence or offences. For this limited purpose, the Court may sift the evidence.

Framing of charges is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the ''record of the case'' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence is an approach which is impermissible in terms of Section 228 of the Code.

What would be the power of this Court in exercise of its revisional jurisdiction in such like cases has been succinctly laid down by the Hon''ble Supreme Court in Amit Kapoor vs. Ramesh Chander and another (2012) 9 SCC 460 wherein it was observed: "13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.

Right from the case of State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [(1982) 1 SCC 561], which was reiterated with approval in the case of State of Haryana & Ors. v. Bhajan Lal & Ors. [1992 Supp. (1) SCC 335], the courts have stated the principle that:

(Swapan Kumar case, SCC p.577, para 21)

"21..... if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received."

It is further stated that (Swapan Kumar case, SCC p. 597, para 65)

"65.....The legal position appears to be that if an offence is disclosed, the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to have been committed; if, however, the materials do not disclose an offence, no investigation should normally be permitted."

Whether an offence has been disclosed or not, must necessarily depend on the facts and circumstances of each case. If on consideration of the relevant materials, the Court is satisfied that an offence is disclosed, it will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed in order to collect materials for proving the offence.

In Bhajan Lal''s case (supra), the Court also stated that though it may not be possible to lay down any precise, clearly defined, sufficiently channelized and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of an FIR should be exercised, there are circumstances where the Court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations 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; where there is an expressed legal bar engrafted in any of the provisions of the Code; and 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. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice.

16 The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited.

Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the ''record of the case'' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.

It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.

Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :

27.1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ''civil wrong'' with no ''element of criminality'' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.

27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10) It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

27.13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

{Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary & Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri & Anr. v. State of U.P. & Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P. [AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705]; Ganesh Narayan Hegde v. s. Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors. [AIR 2005 SC 9]; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors. [AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala & Anr. [(2009) 14 SCC 466]; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna & Anr. v. Peddi Ravindra Babu & Anr. [(2009) 11 SCC 203]; Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar & Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260]; Lalmuni Devi (Smt.) v. State of Bihar & Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay Singh & Anr. [(2001) 8 SCC 645]; Savita v. State of Rajasthan [(2005) 12 SCC 338]; and S.M. Datta v. State of Gujarat & Anr. [(2001) 7 SCC 659]}.

27.16.) These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence."

There can be no denial that "Untouchability" of the Dalits stands an impediment for its transition and is a bane and blot on civilised society. There can be no dignity of person without equality of status and opportunity. Denial of equal opportunities in any walk of social life is denial of equal status and amounts to prevent equal participation in social intercourse and deprivation of equal access to social means. Humane relations based on equality, equal protection of laws without discrimination would alone generate amity and affinity among the heterogeneous sections of the Indian society and a feeling of equal participants in the democratic polity. Adoption of new ethos and environment are, therefore, imperatives to transform the diffracted society into high degree of mobility for establishing an egalitarian social order in Secular Socialist Democratic Bharat Republic as set out in the preamble of the Indian Constitution.

Article 17 as contained in Part III in the Constitution of India, relating to a Fundamental Right, made an epoch making declaration that "untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "untouchability" shall be an offence punishable in accordance with law. It was in exercise of the power in second part of Article 17 and Article 35(a)(ii), the Untouchability (Offences) Act 1955 was made, which was renamed in 1976 as "Protection of Civil Rights Act", for short ''the Act''.

Section 7 (c) of the Act of 1955 for which the petitioner has been charged, reads thus: "7. (c) by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practice "untouchability" in any form whatsoever."

However, the moot question is whether in absence of sanction the petitioner could have been prosecuted. Section 15 (2) of the Act of 1955, reads thus: "15(2). Notwithstanding anything contained in the Code of Criminal Procedure, 1973, when any public servant is alleged to have committed the offence of abetment of an offence punishable under this Act, while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence of abetment except with the previous sanction -

(a) of the Central Government, in the case of a person employed in connection with the affairs of the Union; and

(b) of the State Government, in the case of a person employed in connection with the affairs of a State."

It would be noticed that the specific prayer made by respondent No.2 in his application under Section 156 (3) Cr.P.C. was to the police to lodge a case under Section 3 of the Atrocities Act wherein the allegations were not only levelled against the petitioner but had been levelled against the entire staff of the school, as would be evident from paragraphs 3 to 5 of the application, which read thus: "3. That during the serving of aforesaid Mid-day meal to the children, the respondent alongwith his staff separately serving mid-day meal to the children of Schedule Caste and Schedule Tribes, who are studying in the aforesaid school, from the children of general category, which act and conduct of the respondent alongwith his staff is clearly untouchability being spread among the young children of the school.

That the aforesaid facts came to the knowledge of the applicant because the children of the applicant are also studying in the aforesaid school, who told the aforesaid illegality and offence being committed by the respondent alongwith his staff to the applicant.

That the aforesaid act and conduct of the respondent alongwith his staff insult and humiliate the young children of the applicant alongwith other children of Schedule Caste and Schedule Tribes, who are study in the aforesaid act of the respondent also hurt the dignity and self respect of the aforesaid children in the eyes of children of general category."

It would further be noticed that in the statement of respondent No.2 recorded under Section 154 Cr.P.C., he has specifically stated that the factum of untouchability had been brought by him to the notice of Art teacher Surender Pal and after he was elected as President of SMC in GMS, Neri Chahal, he brought these facts to the notice of the teachers in the presence of Naresh Kumar, Puran Chand, Jhulekha and other guardians of the children. He even goes to the extent of saying that many children absented themselves from school and it was the petitioner as the School Incharge, who alongwith respondent No.2 visited their homes and urged their parents to send their wards to the school. Yet it is the petitioner who alone has been singled out and made to stand trial.

On the basis of the aforesaid allegations, it is established beyond all reasonable doubt that the petitioner is sought to be prosecuted as a public servant while acting or purporting to act in discharge of his official duty, which could have only been initiated after obtaining the sanction under Section 15 (2) of the Act.

Once that is the position, then obviously the proceedings initiated against the petitioner vide case PC No.81-II/16/14 Reg. No. 495/2014 are not maintainable and are therefore, accordingly quashed and set-aside and consequently the petitioner is ordered to be discharged. Pending application(s), if any, stands disposed of.