Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ. contemplated an appeal where the appellant had been convicted and sentenced under Sections 363 and 376 of Penal Code, 1860 and Section 3(2)(v) of SC/ST Act i.e. commission of any offence under the IPC punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine.

Minimal facts relevant for proper appreciation of the case are that one Asha Bhai lodged an FIR against the appellant for alleged rape and kidnapping of the minor granddaughter of the complainant. Complainant, victim and the appellant were travelling to Ahmedabad when the appellant alleged drugged Asha and when he regained her consciousness there was no trace of the minor victim and the appellant. Subsequently, an investigation was conducted and charge-sheet was filed. Appellant was charged under various Sections of IPC and under Section 3(1) (xii) of SC/ST (Prevention of Atrocities) Act. As the charge under SC\ST Act was added the case was duly transferred to the Special Judge for trial. After the trial, the Judge convicted the appellant, hence the instant appeal was preferred.

The counsel for the appellant, Pradeep Shah, submitted that judgment passed by the trial court was bad in the eyes of law. He urged that there was no allegation of any of the prosecution witnesses that the accused kidnapped or subjected the victim to rape with the intention of committing offence on a member of the Scheduled Caste community. He further argued that the conviction of the accused of the offence under Section 3(2)(v) of the SC/ST Act was prima facie illegal. It was further submitted that the victim was not a minor and there was no proper evidence to prove otherwise. It was contended that the alleged victim resided with her own will and never protested hence the physical relation was consensual and no case of rape was to be made.

Learned Public Prosecutor, N.S. Bhati vehemently and fervently opposed the submissions advanced by the appellant. He urged that the victim had given cogent testimony at the trial stating that she was a minor on the date of the incident. The accused lured her away on the premise that he would get her father released from prison. Entertaining this bonafide belief, she accompanied the accused and her grandfather for going to Ahmedabad. The accused gave a slip to her grandfather and forced her to board a train. She was taken to Mahsana where she was kept in a house which is at an isolated place. There, the accused repeatedly subjected her to sexual intercourse. It was further submitted that the medical report pointed towards the alleged rape and the age of the minor was also confirmed accordingly.

The Court, gave thoughtful consideration to the arguments of the parties and observed that “Prima facie, from the evidence available on record, it is duly established and we are fully satisfied that the accused committed the offence under Sections 363 & 376 IPC not because he wanted to sexually assault a member of the scheduled caste community but these offences were perpetrated by the accused in order to satisfy his carnal desires.”

The Court further relied on the judgment in, Masumsha Hasanasha Musalman v. State of Maharashtra, (2000) 3 SCC 557, where the Supreme Court in a similar case opined that, the case was not designated against the SC/ST community specifically. Hence the Court opined that the finding recorded by the trial court whereby the accused was held liable for the offence under Section 3(2)(v) of the SC/ST Act and was sentenced to life imprisonment on this count is ex-facie illegal and contrary to record. Hence, the Court set aside the impugned judgment to that extent. Further, it observed that the remaining Judgment of the trial court was legal. Thus the appeal was allowed partly.[Kesa Bhai v. State of Rajasthan, 2019 SCC OnLine Raj 1403, decided on 02-07-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Rath, J., allowed the writ petition which revolved around the issue of ascertaining as to whether the caste ‘Raj Gond’ is synonymous to ‘Gond’ as was mentioned in the Record of Rights (ROR).

The facts were that opposite party 1 and 2 filed an application under Section 23 of the Orissa Land Reforms Act, 1960 (“OLR Act”) before the Sub-Collector to declare a sale deed void and restore possession. The Contention was that they were scheduled tribe persons. They belonged to caste ‘Gond’. The father of opposite party 1 and 2 had transferred the land in favor of the predecessor-in-interest of the petitioners without obtaining permission from the Revenue Officer under Section 22 of the Orissa Land Reforms Act, 1960.

The petitioners (herein Opposite Party 1 and 2) contended that they were Raj Gond by caste. They did not belong to caste ‘Gond’ thus no permission was required for alienation of the land. Their vendor, the father was a literate person and in the sale deed, he described his caste as ‘Raj Gond’. In the course of hearing, opposite party 1 and 2 stated that they belonged to ‘Gond’ by caste but in the ROR, their caste was mentioned as ‘Raj Gond’. Their father was the zamindar of Loisingha. In 1936 settlement, he was bestowed with the title of “Raja”. After 1936 settlement; he used to write Raja before their caste, though he belonged to ‘Gond’ caste. The opposite party No. 3 came to hold that the caste of opposite party 1 and 2 was ‘Gond’, not ‘Raj Gond’. They were scheduled tribe persons and no permission was accorded by the authority thus the deed was a void one. Accordingly, the possession was restored to them and a writ of delivery of possession of the same was issued. The petitioners then filed an appeal before the Additional District Magistrate, Balangir. The appellate authority held that in the sale deed, caste was mentioned as ‘Raj Gond’. No authority could interpret ‘Raj Gond’ as ‘Chief Gonds’ or synonymous to ‘Gond’ thus no permission under Section 22 of the OLR Act was necessary for alienation of land. The appeal was thus allowed. Mrs Sahoo, the Advocate for the petitioners, submitted that the father was not a scheduled tribe person. Thus permission under Section 22 of the OLR Act was not a sine qua non for alienation of the land.

High Court held that no roving inquiry is permissible to ascertain as to whether the caste ‘Raj Gond’ is synonymous to ‘Gond’. Section 22 and Section 23 of the OLR Act would not come into play. The impugned order was thus quashed and the writ application was allowed. [Belmati Pradhan v. Jaya Krushna Singh Rai, 2019 SCC OnLine Ori 144, decided on 29-03-2019]

Case BriefsSupreme Court

Supreme Court: Acknowledging the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act), the bench of AK Goel and UU Lalit, JJ said that the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance nor was it intended to deter public servants from performing their bona fide duties. It was, hence, held that unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens.

The Court said:

“the Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions. … Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution.”

Background:

The Court was hearing an appeal against the order of the Bombay High Court where it was held that no public servant or reviewing authority need to apprehend any action by way of false or frivolous prosecution, but the penal provisions of the Atrocities Act could not be faulted merely because of possibility of abuse. In the present matter, certain adverse remarks were recorded under the Atrocities Act against the appellant who was serving as the Director of Technical Education in the State of Maharashtra at the relevant time. Apart from the facts of the present appeal, it was brought to the Court’s notice that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes.

Conclusion:

The Court held:

“an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. The law has to be interpreted accordingly.”

Holding that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny, the Court issued the following directions:

  • there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.
  • arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
  • to avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
  • any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.

[Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018]