Basheer M, Sainaba and Sameera v. The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** ## **Crl.MC.No.1526 OF 2020(A)** **CRIME NO.42/2020 OF Mannarkkad Police Station , Palakkad** ## **PETITIONERS/ACCUSED:** - **1 BASHEER M AGED 47 YEARS S/O.ABU (LATE), MOTHIKKAL HOUSE, MANNARKKAD, PALAKKAD DISTRICT.** - **2 SAINABA AGED 75 YEARS W/O.ABU (LATE), MOTHIKKAL HOUSE, MANNARKKAD, PALAKKAD DISTRICT.** - **3 SAMEERA AGED 43 YEARS D/O.ABU (LATE), MOTHIKKAL HOUSE, MANNARKKAD, PALAKKAD DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS/STATE, DEFACT COMPLAINANT & VICTIM:** - **1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682031.** - **2 THE SUB INSPECTOR OF POLICE, MANNARKKAD POLICE STATION, PALAKKAD DISTRICT, PIN678582.** - **3 SIVASUBRAMANIA DASAN, S/O.MURUKAN, SURENDER NIVAS, MOOLAKKADA, AGALI, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678581.** - **4 NANJAN MOOPPAN, S/O.THIMMAN, DAIVAGUNDU, JELLIPPARA, AGALI, PALAKKAD DISTRICT, PIN-678581.** **R3-4 BY ADV. SRI.K.T.THOMAS SRI K T THOMAS -R2,3,SRI AJITH MURALI-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.03.2020, THE COURT ON 19.05.2020 PASSED THE FOLLOWING:** Crl.M.C.No.1526/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.1526 of 2020 -----------------------------------------Dated this the 19[th] day of May, 2020 ## **O R D E R** This is a petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for quashing the proceedings initiated against the petitioners in the case registered as Crime No. 42/2020 of the Mannarkkad police station. 2. The aforesaid case is registered against the petitioners on the basis of a complaint filed against them by the third and the fourth respondents in the court which was forwarded to the police under Section 156(3) of the Code for investigation. 3. The case against the petitioners was registered for committing the offences punishable under Sections 3(1)(b), 3(1) (c), 3(1)(f), 3(1)(g), 3(1)(r), 3(1)(s) and 3(1)(t) of the Crl.M.C.No.1526/2020 3 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act'). Subsequently, the penal provisions have been altered to Sections 3(1)(za)(A) and 3(1)(za)(C) of the Act. 4. The crux of the allegations raised against the petitioners, in the complaint filed against them in the Special Court by the third and the fourth respondents, can be stated as follows: The complainants are tribals who belong to scheduled tribe. The accused are persons who do not belong to any scheduled caste or scheduled tribe. An extent of one acre of land, which has been allotted to the tribals by Mooppil Nair, for conducting their customary and community rituals in connection with Mannarkkad Pooram, is lying adjacent to the property of the accused. The accused have forged and fabricated documents to grab the aforesaid land. By claiming right on the basis of such documents, they have encroached upon that land and installed stone pillars and wire fencing and caused obstruction to the entry of tribal people into that land. The accused threatened that they would not allow tribal people to enter into the land and conduct the Crl.M.C.No.1526/2020 4 rituals. 5. The question for consideration is, whether the averments or the allegations in the complaint filed against the petitioners, prima facie, disclose commission of the offences punishable under Sections 3(1)(za)(A) and 3(1)(za)(C) of the Act. 6. Heard learned counsel for the petitioners and also the third and the fourth respondents and the learned Public Prosecutor. 7. Section 3(1)(za)(A) of the Act states that, whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, obstructs or prevents a member of a Scheduled Caste or a Scheduled Tribe in any manner with regard to using common property resources of an area, or burial or cremation ground equally with others or using any river, stream, spring, well, tank, cistern, water-tap or other watering place, or any bathing ghat, any public conveyance, any road, or passage, shall be punished. 8. Section 3(1)(za)(C) of the Act states that, whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, obstructs or prevents a member of a Scheduled Caste or a Crl.M.C.No.1526/2020 5 Scheduled Tribe in any manner with regard to entering any place of worship which is open to the public or other persons professing the same religion or taking part in, or taking out, any religious, social or cultural processions including jatras, shall be punished. 9. A close scrutiny of the provisions contained in Sections 3(1)(za)(A) and 3(1)(za)(C) of the Act would show that, in order to attract the offences under those provisions, a specific person who belongs to a scheduled caste or a scheduled tribe shall be obstructed or prevented in any manner from doing any of the acts mentioned therein. An act by a person who does not belong to any scheduled caste or scheduled tribe, which has the effect of causing obstruction or prevention to a person who belongs to a scheduled caste or a scheduled tribe, with regard to use of any of the resources or facilities mentioned in Section 3(1)(za)(A) of the Act, is the gist of the offence under that provision. An act by a person who does not belong to any scheduled caste or scheduled tribe, which has the effect of causing obstruction or prevention to a person who belongs to a scheduled caste or a scheduled tribe, with regard to the entry into any place of worship or taking part Crl.M.C.No.1526/2020 6 in any religious, social or cultural procession, is the gist of the offence under Section 3(1)(za)(C) of the Act. 10. In the present case, there is no allegation or averment in the complaint filed against the petitioners that they prevented or caused obstruction to any specific person, who belonged to a scheduled caste or a scheduled tribe, from using or entering into the land which has been allegedly allotted to the tribals for conducting the rituals in connection with Mannarkkad Pooram. The name of any person, to whom obstruction was caused by the petitioners, is not mentioned in the complaint. There is no allegation that the third and the fourth respondents were obstructed or prevented by the petitioners from using or entering into the disputed land. 11. On the other hand, the allegation against the petitioners is that they constructed a wire fence and thereby prevented or caused obstruction to the entry and use of the disputed land by the tribals. The act allegedly committed by the petitioners would prevent not only the tribals but other persons also from entering into the disputed land and using it. The case diary reveals that Crl.M.C.No.1526/2020 7 the wire fence was constructed by the petitioners five or six months before the filing of the complaint. Even if it is accepted that the act of the petitioners caused obstruction to the entry of the tribals into the disputed land and the use of it by them, it is an act committed against a community or group of persons. Such an act will not come within the scope and ambit of the provisions contained in Sections 3(1)(za)(A) and 3(1)(za)(C) of the Act. 12. A bare reading of the provisions contained in Section 3(1) of the Act would show that many of the offences mentioned under that provision are offences against an individual, that is, acts directed against any person who belongs to a scheduled caste or a scheduled tribe. But, some of the offences mentioned under Section 3(1) of the Act are acts directed collectively against the members of scheduled castes and scheduled tribes as a community or group or entity. The expression “obstructs or prevents a member of a scheduled caste or a scheduled tribe” in Section 3(1)(za) of the Act would clearly show that what is made punishable under that provision is an act directed against an individual who belongs to a scheduled caste or a scheduled tribe Crl.M.C.No.1526/2020 8 and not an act done against the community of scheduled castes or scheduled tribes as a whole. 13. In the aforesaid circumstances, I am of the view that the allegations or averments in the complaint filed against the petitioners by the third and the fourth respondents do not disclose commission of the offences punishable under Sections 3(1)(za)(A) and 3(1)(za)(C) of the Act by the petitioners. 14. The question whether the disputed land, having an extent of one acre, was allotted to the tribals by Mooppil Nair for conducting their rituals or whether it is a land owned and possessed by the petitioners is a matter to be decided by the competent civil court. 15. A first information report, which does not disclose the essential facts to constitute the offence alleged, cannot form the foundation of a lawful investigation (See **State of West Bengal v. Swapan Kumar Guha: AIR 1982 SC 949** ). The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations made would prima Crl.M.C.No.1526/2020 9 facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. The process of the court cannot be utilised for any oblique purposes (See **Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre : AIR 1988 SC 709** ). When the allegations made in the first information report, taken on the face value and accepted in their entirety, do not constitute an offence, the criminal proceedings instituted on the basis of such first information report should be quashed (See **State of U.P v. R. K. Srivastava : AIR 1989 SC 2222** ). Where the uncontroverted allegations made in the first information report or the complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, the power under Section 482 of the Code can be invoked to quash the first information report or the complaint (See **State of Haryana v. Bhajan Lal : AIR 1992 SC 604** ). If any case is registered against any person by misusing the Crl.M.C.No.1526/2020 10 provisions of the Act, it can be quashed by invoking the power of the High Court under Section 482 of the Code (See **Union of India v. State of Maharashtra : AIR 2019 SC 4917** ). 16. Applying the principles stated in the aforesaid decisions of the Apex Court, I find that this is a fit case in which the proceedings initiated against the petitioners are liable to be quashed by invoking the power of this Court under Section 482 of the Code. 17. Consequently, the petition is allowed. The entire proceedings initiated against the petitioners on the basis of Crime No. 42/2020 of the Mannarkkad police station are hereby quashed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.1526/2020 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE RESPONDENTS 3 AND 4 BEFORE THE SPECIAL COURT, MANNARKKAD.** **ANNEXURE B TRUE COPY OF THE F.I.R. IN CRIME NO.42/2020 OF THE MANNARKKAD POLICE STATION DATED, 31.1.2020. ANNEXURE C TRUE COPY OF THE TAX RECEIPT ISSUED BY THE MANNARKKAD-I VILLAGE DATED, 5.3.2019. ANNEXURE D TRUE COPY OF THE PROCEEDINGS OF THE TALUK SURVEYOR, MANNARKAD DATED, 21.4.2009. ANNEXURE E TRUE COPY OF THE COMPLAINT FILED BY THE 3RD PETITIONER DATED 2.4.2017 TO THE 2ND RESPONDENT. ANNEXURE F TRUE COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE 2ND RESPONDENT DATED 2.4.2017. ANNEXURE G TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE SISTER OF THE PETITIONERS DATED, 21.4.2017 BEFORE THE J.F.C.M., MANNARKKAD AS C.M.P.NO.2757/2017. ANNEXURE H TRUE COPY OF THE REPORT AND SKETCH OF THE TALUK SURVEYOR,MANNARKKAD DATED, 28.5.2018. ANNEXURE I TRUE COPY OF THE DECISION TAKEN BY THE MEETING CONVENED BY THE TAHSILDAR, PERINTHALMANNA DATED, 8.3.2019. ANNEXURE J TRUE COPY OF THE PROCEEDINGS OF THE TALUK SURVEYOR, MANNARKKAD DATED, 10.4.2019.** 12 Crl.M.C.No.1526/2020 ## **ANNEXURE K** **TRUE COPY OF THE ORDER ISSUED BY THE TAHSILDAR, MANNRKKAD DATED, 29.4.2019.** ## **ANNEXURE L** **TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD OF DISTRICT HOSPITAL, PALAKKAD DATED 17.4.2002.** **RESPONDENTS' EXHIBITS** : **NIL** TRUE COPY PS TO JUDGE