CRIMINAL APPELLATE JURISDICTION CRIMINAL …

1 REPORTABLEIN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL OF 2018(Arising out of Special Leave Petition (Crl.) of 2017)DR. SUBHASH KASHINATH STATE OF MAHARASHTRA AND U D G M E N TADARSH KUMAR GOEL, appeal has been preferred against the order dated 5thMay, 2017 of the High Court of Judicature at Bombay in CriminalApplication of 20th November, 2017 the following order was passed bythis Court:- Heard learned counsel for the adverse remarks were recorded against respondentno. 2-Bhaskar Karbhari Gaidwad by the Principal and Headof the Department of the College of Pharmacy whererespondent no. 2 was employed. Respondent No. 2 sought1sanction for his prosecution under the provisions of theScheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 and for certain other connectedoffences.

2 The said matter was dealt with by the petitionerand sanction was declined. This led to another complaintby the respondent no. 2 against the petitioner under thesaid provisions. The quashing of the said complaint hasbeen declined by the High question which has arisen in the course ofconsideration of this matter is whether any unilateralallegation of mala fide can be ground to prosecute officerswho dealt with the matter in official capacity and if suchallegation is falsely made what is protection availableagainst such to say that if the allegation is to be acted upon,the proceedings can result in arrest or prosecution of theperson and have serious consequences on his right toliberty even on a false complaint which may not beintended by law meant for protection of a bona fide question is whether this will be just and fair procedureunder Article 21 of the Constitution of India or there can beprocedural safeguards so that provisions of ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989 are not abused for extraneous notice returnable on 10th January, the meanwhile, there shall be stay of notice to Attorney General of India also as the issueinvolves interpretation of a central Amrendra Sharan, learned senior counsel is requestedto assist the Court as amicus.

3 Mr. Sharan will be at libertyto have assistance of Mr. Amit Anand Tiwari, Advocate.. certain facts are stated while framing the questionalready noted, some more facts may be noted. The appellant2herein is the original accused in the case registered at City PoliceStation, Karad for the offences punishable under Sections 3(1)(ix),3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) asalso Sections 182, 192, 193, 203 and 219 read with 34 of theIndian Penal Code, 1860 (IPC). He was serving as Director ofTechnical Education in the State of Maharashtra at the second respondent - the complainant is an employee ofthe department. He was earlier employed as a Store Keeper inthe Government College of Pharmacy, Karad.

4 He was later postedat Government Distance Education Institute, Pune. Dr. SatishBhise and Dr. Kishor Burade, who were his seniors but non-scheduled caste, made adverse entry in his annual confidentialreport to the effect that his integrity and character was not lodged FIR with Karad Police Station against the said twoofficers under the Atrocities Act on 4th January, 2006 on thatground. The concerned Investigating Officer applied for sanctionunder Section 197 against them to the Director of Technical3 Education on 21st December, 2010. The sanction was refused bythe appellant on 20th January, 2011. Because of this, C SummaryReport was filed against Bhise and Burade which was notaccepted by the court. He then lodged the present FIR againstthe appellant.

5 According to the complainant, the Director ofTechnical Education was not competent to grant/refuse sanctionas the above two persons are Class-I officers and only the StateGovernment could grant sanction. Thus, according to him, theappellant committed the offences alleged in the FIR dated 28thMarch, 2016 by illegally dealing with the matter of sanction. complaint is fully extracted below: In the year 2009 I was working as store keeper in theGovt. Pharmacy College Karad, at that time I haveregistered complaint to Karad City Police Station 3122/09 u/s 3(1)9, 3(2)(7)6 of & (Preention of Atrocities) Act and the investigation wasdone by Shri Bharat Tangade, then Karaddivision Karad in the investigation 1) SatishBalkrushna Bhise, then Principal Pharmacy CollegeKarad, 2) Kishor Balkrishna Burade, then Professor,Pharmacy College Karad has been realized asaccused in the present crime.

6 Investigation officercollect sufficient evidence against both the accused,but both the accused are from Govt. TechnicalEducation department Class 1 Public Servant, sobefore filing charge sheet against them he wrote theletter to the senior office of the accused u/s 197 to take the permission at that time Kashinath Mahajan was working as inchargedirector of the office. Today also he is working assame post. Mr. Mahajan does not belongs to & but he knew that I belongs to and fact both the accused involved in crime are working on class 1 post and to file acharge sheet against them the permission has to betaken according to Section 197. This factknown to Shri Mahajan and Mr. Mahajan knew thatthis office did not have such right to give Mr.

7 Mahajan send letter to Mumbai Office. Infactto give the required permission or to refuse thepermission is not comes under the JURISDICTION ofincharge direction, Technical Education Mumbai. But,Mr. Mahajan misused his powers so that, accusedmay be benefited, he took the decision and refusedthe permission to file the charge sheet against theaccused. So that, investigation officer Shri BharatTangade fails to submit the charge sheet against theboth the accused, but he complain to submit C summary report. appellant, after he was granted anticipatory bail, appliedto the High Court under Section 482 for quashing theproceedings on the ground that he had merely passed a bonafideadministrative order in his official capacity. His action in doing socannot amount to an offence, even if the order was High Court rejected the petition.

8 With the contention that if such cases are notquashed, recording of genuine adverse remarks against an5employee who is a member of SC/ST or passing a legitimateadministrative order in discharge of official duties will becomedifficult and jeopardise the administration, the High Courtobserved that no public servant or reviewing authority need toapprehend any action by way of false or frivolous prosecution butthe penal provisions of the Atrocities Act could not be faultedmerely because of possibility of abuse. It was observed that inthe facts and circumstances, inherent power to quash could notbe exercised as it may send a wrong signal to the downtroddenand backward sections of the society. have heard Shri Amrendra Sharan, learned seniorcounsel, appearing as amicus, Shri Maninder Singh, learnedAdditional Solicitor General, appearing for the Union of India, Singh, learned senior counsel and the other learned counselappearing for the intervenors and learned counsel for the partiesand perused the record.

9 May refer to the submissions put forward before theCourt:6 Submissions of learned amicus submitted that in facts of the present case,no offence was made out under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Atrocities Act and Sections 182, 192, 193, 203 and 219of the Indian Penal Code and, thus, the High Court ought to havequashed the proceedings. He submitted the following table toexplain his point:Provisions of the SC/ST Actinvoked in this caseApplicability of the provisions inthe facts of the case3. Punishment for offences atrocities. 3 [(1) Whoever, not being amember of a Scheduled Caste or aScheduled Tribe, - (ix): gives any false or frivolousinformation to any public servant andthereby causes such public servant touse his lawful power to the injury orannoyance of a member of aScheduled Caste or a ScheduledTribe;The provision mandates a false andfrivolous information given by thepublic servant , however in thepresent case, the Petitioner hasdenied sanction for prosecution whichclearly does not amount to false orfrivolous information.]

10 Thus, a caseunder Section 3(1)(ix) of the SC/STAct is not made (2)(vi): knowingly or having reasonto believe that an offence has beencommitted under this Chapter,causes any evidence of thecommission of that offence todisappear with the intention ofscreening the offender from legalpunishment, or with that intentiongives any information respecting theoffence which he knows or believes tobe false, shall be punishable with thepunishment provided for that offence;Section 3(2)(vi) requires causing ofdisappearance of evidence with theintention of screening the offenderfrom legal punishment, however, inthe present case, there is noallegation that the petitioner hascaused disappearance of anyevidence.