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Judgment
S. Ashok Kumar, J.—This Criminal Revision Case has been filed by the complainant, P.W.1 in S.C. No. 115 of 2003 on the file of the
Learned Additional Assistant Sessions Judge, Tindivanam.
The brief facts and circumstances which led to the filing of this Revision are as follows:-
The petitioner is a member of the Adi Dravidar Community and native of Perumukkal Colony, he has 4 daughters and a son. His last daughter
Radha''s marriage was fixed on 28.6.1996. On the previous day i.e., on 27.6.1996, the bridegroom party came to the petitioner''s house with
customary gifts of marriage and other items. At about midnight the accused set fire to the petitioner''s house in which the entire belongings of the
petitioner''s family including the cash, jewels, groceries brought for celebration of marriage, utensils, clothes worth around Rs. 1 lakhs got burnt. On
28.6.1996 morning the Revision Petitioner lodged a complaint to the Brahmadesam Police Station, which was registered as a case in Crime No.
326 of 1996 u/s 436 IPC and a charge sheet was also filed. The petitioner is an illiterate and was not aware of the provisions of law invoked in his
case and the consequences. Only on 19.3.2003 when the petitioner was examined as a witness, he came to know that his complaint was
registered under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and therefore he had sought
legal aid as per the advice given to him. He filed a petition in CMP. No. 90 of 2003 on 4.4.2003 seeking alteration of the charge u/s 436 IPC to
Section 3(2)(iv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. But while typing the Petition, instead of
Section 3(2)(iv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, a typographical error occurred wherein it
was mentioned as 3(2)(v) of the said Act. The trial court rejected the Petition filed by the revision petitioner on the ground that the same has been
filed only to protract the proceedings and that the trial of the case is partly over and also that the petition was not maintainable since the same was
not filed by the Additional Public Prosecutor, but by a private lawyer. Hence, aggrieved over the said order, this revision has been filed to direct
the Deputy Superintendent of Police to further investigate the case and to file a proper charge sheet before the concerned Judicial Magistrate for
being committed to the Special Court formed for the purpose of the said Act.
In spite of notice, there is no representation for the other respondents. I have gone through the detailed order passed by the learned Additional
Assistant Sessions Judge, Tindivanam, by which he has rejected the said Petition filed by the revision petition on three grounds viz., (i) that the
petition has been filed only to protract the proceedings; (ii) Section 3(2)(v) of the Act (wrongly typed in the Petition) could not be invoked; and (iii)
The Petition has been filed not through the Additional Public Prosecutor, but by a private lawyer.
As regards the first ground that the Petition has been filed only to protract the proceedings, no reason has been attributed by the learned
Additional Assistant Sessions Judge as to how such a motive is behind the filing of the Petition. The learned Trial Judge has filed to note that though
the occurrence took place on 27.6.1996 midnight and the complaint was lodged on the next day morning, but the charge sheet was filed only on
13.5.2002 i.e., nearly 7 years after the said occurrence. The case was registered as a Primary Case No. 11/2002 on 13.5.2002 and was
committed to the Sessions Court on 30.5.2002 and charge sheet was filed only on 14.11.2002. Seven years delay in laying the charge sheet or
taking the same on file for being committed to the Sessions Court and taking cognizance of the offence by the Sessions Court have not been taken
into consideration by the learned Additional Assistant Sessions Judge. On the other hand, he has simply stated in his order that the Petition has
been filed for the purpose of protracting the proceedings. Such a finding has no legal support and hence the same is to be rejected.
The next ground on which the Petition was rejected was that it is mentioned in the Petition that the accused have committed offences u/s 3(2)(v)
of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. Learned counsel for the revision petitioner would submit
that there was a typographical error and the same was mentioned during the course of the argument before the learned Additional Assistant
Sessions Judge. But the learned Judge instead of finding a correct provision of law, i.e., Section 3(2)(iv) of the said Act has taken undue advantage
of the typographical error and has taken it as a cause for rejecting the Petition filed by the revision petitioner.
Section 3(2)(iv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, reads as follows:-
3(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--
(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 of 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;
In the present case, the accused A.1 to A.4 who belonged to Gounder community, which is a backward community have torched the house of
P.W.1, revision petitioner, who belong to a member of Scheduled Caste community. It is pertinent to note that at the time of occurrence, the
petitioner has collected materials like clothes, groceries, cash and jewels for the purpose of celebrating his daughter''s marriage on the next day
morning. All these valuable goods were destroyed by the fire caused by the atrocious act said to have been committed by the accused. A.5 is a
relative of P.W.1, but now he is nomore. But A.1 to A.5 belonged to a backward community and therefore, they are liable to be prosecuted for
the offences u/s 3(2)(iv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 also. The trial court could not take
advantage of a simple typographical error committed in the Petition, in spite of the fact that the same was brought to the notice of the learned
Judge. In a case of this nature the proper Sections to be added is the concerned Section appearing in the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act 1989 also. On the other hand, the learned Judge has held that simply because the victim is a member of the
Schedule Caste, the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 need not be attracted for which
he has sought support from a judgment in Abdul Gafarsab v. State of Karnataka reported in 1998 Cri. L.J. 2448. The said judgment is concerned
with a case u/s 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, whereas this is a case which is u/s
3(2)(iv) of the said Act. Therefore, the reasoning given by the learned Trial Judge is not acceptable.
In this case it is worthwhile to mention two judgments of this Court one reported in 1998 (1) LW.(Crl) 285 (Mariammal v. State of Tamil Nadu
and the other unreported judgment in Crl.R.C.No. 768 of 2000, (Nallathambi v. State, rep. by Inspector of Police, Melur Police Station, Madurai
District and Ors.) dated 17.4.2002. In the first judgment cited above, S.M. Siddick, J., held as follows:-
Now the charge sheet has been filed in this case and the case was taken on file by the learned Additional Sessions Judge-cum-Chief Judicial
Magistrate, Villupuram in S.G. No. 111/97. At the risk of repetition I have to state that there are serious allegations even in the FIR given by
Lakshmi that she being a woman belonging to the Scheduled Tribe was assaulted and force was used on her to outrage her modesty and to exploit
her for sex to which she was not agreeable, and in those circumstances it is a clear case arising under some of the provisions of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act 33/89, and in those circumstances only a Deputy Superintendent of Police should have
been the Investigating Officer as mandated under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
Notwithstanding the filing of the charge sheet and the taking of the cognizance of the case by the Sessions Court, Additional Sessions Judge -Cum-
Chief Judicial Magistrate, Villupuram in S.C. No. 111/97, there is every scope for further investigation for the offences arising under Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act 33/89 in this case. Section 173(8) of Cr.P.C., states that nothing in Section 1734 shall
be deemed to preclude further investigation in respect of an offence after a report under Sub Section (2) has been forwarded to the Magistrate and
where upon such further investigation, the investigating officer obtains further evidence, orally and documentary, he shall forward to the Magistrate
the further report regarding such materials in the form prescribed.
In the unreported judgment, referred to above, My Brother M.Karpagavinayagam,J., held as follows:-
On going through the typed set containing deposition copies, it is clear that there are averments in the charge sheet and the statements of
witnesses that two persons who belonged to Dalit community were done to death, while they were travelling in the bus after attending the Peace
Committee meeting to settle the dispute between the Dalits and Ambalams.
This Court would hold in Alagarsamy v. State of Tamil Nadu 1999 (2) L.W.(Crl.) 871 that when the accused persons attacked a member of a
Scheduled Caste and caused injury, it would clearly attract Section 3(1)(x) of the SC/ST Act, even though the caste name was not used, since the
intention itself or intimidation of the Scheduled Caste member would be an offence under the Act. Under those circumstances, the trial court ought
to have framed charge u/s 3(1)(x) of the Act.
xx xx xx xx xx
Taking into consideration the facts and circumstances of the case, I am of the view that the further investigation has to be ordered u/s 173(8) of
Cr.P.C. directing the Superintendent of Police, Madurai District to depute a Deputy Superintendent of Police as required under Rule 7 of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules 1995 to further investigate into the matter and file an Additional charge
sheet after collecting the materials by taking statements from the witnesses in respect of the offences under Sections 3(1)(x) and 3(2)(v) and to add
the relevant provisions of the Act in the additional Charge sheet after further investigation, if the offences are made out and accordingly ordered.
The Deputy Superintendent of Police is further directed to file the additional report before the competent court by adding the relevant provisions of
the SC/ST Act and the said competent court would entertain the Additional charge sheet and proceed with the matter in accordance with law.
From the judgments cited above, it is clear that the accused are liable to be tried for offences u/s 3(2)(iv) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act 1989 also. Therefore, direction is to be issued to the Superintendent of Police, Villupuram District
to appoint an Officer not below the rank of Deputy Superintendent of Police, as required under Rule 7 of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Rules 1995 to further investigate the case and to file a final report before the concerned Judicial Magistrate.
The learned Trial Judge has rejected the Petition filed by the revision petitioner on one another ground viz., the Petition was filed through a
private lawyer and not by the Additional Public Prosecutor. We do not know under what circumstances the learned Additional Public Prosecutor
failed to draw the attention of the learned Judge to the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act
1989 and also as to how a charge was framed without adding Section 3(2)(iv) of the said Act. Once the Additional Public Prosecutor has failed to
invite the kind attention of the learned Judge with regard to the correct provision of law, we do not know whether it was willful or wanton or by
negligence or innocence. The petitioner who is an illiterate and was not aware of the fact that the provisions of SC/ST Act was not invoked to
prosecute the accused has every right to engage a private counsel to file such a Petition to bring the facts to the notice of the concerned Court.
Merely because a private lawyer has been engaged to file such a Petition by an illiterate complainant, it does not mean that the court can throw out
the same on a simple ground that the learned Additional Public Prosecutor was not engaged to file such a Petition. Mr. N. Kumanan, learned
Government Advocate (Crl. Side) submits that there is a mistake on the part of the Learned Additional Public Prosecutor in not bringing this fact to
the notice of the Court before starting of the trial or at least at the time of taking cognizance of the offence. In fact, the trial court should have taken
the Additional Public Prosecutor with the task as to why he failed to file such a Petition to bring it to the notice of the Court. Therefore, this
Revision Case deserves to be allowed and the same is allowed with a direction to the Superintendent of Police, Villupuram District to appoint an
Officer not below the rank of Deputy Superintendent of Police, as required under Rule 7 of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Rules 1995 to further investigate the case and to file a final report before the concerned Judicial Magistrate.
Consequently, connected Crl.M.P. No. 12293 of 2003 is closed.