The answer to the issue would obviously be in the
negative. The reasons are not too for to seek. Even though the
applicant did not take any specific action, though under a duty in
law to take it upon the report dated 3rd May, 2014, if the complaint
which lies at the root of the whole issue itself has been found to be
groundless and has been dismissed by the learned Chief Judicial
Magistrate, Gadchiroli, which order has also been confirmed by this Court, the inaction of the applicant cannot be said to be falling
within the expression “willful neglect of duty,” an essential
ingredient of the offence punishable under Section 4 of the
Atrocities Act. The applicant had kept the matter pending as he
did not pass any order on the report and during pendency of the
matter, as a subsequent development, the complaint itself was
found to be groundless by Courts of law. In a given case, keeping a
matter pending for inordinately long time can amount to willful
neglect of duty. But, as the complaint itself has been dismissed by
a Criminal Court, no mala fides can be attributed to the applicant
and, therefore, no willful act on his part can be found in keeping
the matter pending.
14. The learned Sessions Judge did not consider the aspect
of failure or neglect to perform the duty in its proper perspective.
In the circumstances noted in earlier paragraph, it is difficult to
imagine that the applicant could have been held to be liable for
willful neglect or performance of the duty. Therefore, the order
impugned herein has to be termed as illegal and arbitrary and it
deserves to be quashed and set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION No.143 OF 2014
Dr. Rahul s/o. Dharmaraj Khade,
...VERSUS...
State of Maharashtra,
CORAM
: S.B. SHUKRE, J.
DATE : 12 th DECEMBER, 2014 .
Citation;2015 ALLMR(CRI)2770
3. Heard finally by consent of the parties.
4. The facts giving rise to the present criminal revision
application are stated in brief as under :
(i)On 16.12.2013, the respondent No.2 herein lodged a
report with the Police Station Ajni, Nagpur alleging that the
Research OfficerSharad
Shankarrao Chavan attached to Gadchiroli
Caste Scrutiny Committee using derogatory and humiliating
language against the members belonging to Mana, Schedule Tribes
Community, based upon a false and frivolous information, caused
injury and annoyance to the members of the Mana, Schedule Tribes
and thus committed an offence punishable under Section 3(1)(ix)
of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as, “the Atrocities
Act”).
(ii)The subject matter of the report lodged with Police
Station Ajni, pertained to an area within the jurisdiction of Police
Station Gadchiroli and, therefore, it was sent by Nagpur Police on
19.12.2013 to Superintendent of Police, Gadchiroli for taking
necessary action in accordance with law. On receipt of the same,
the Superintendent of Police, Gadchiroli, instead of sending the
report first to the concerned Police Station for registration of the
offence, forwarded the report dated 16.12.2013 to the applicant by
his letter dated 31.12.2013 for making necessary inquiry and
submitting his report to the Office of the Superintendent of Police,
Gadchiroli. At that time, the applicant was functioning as SubDivisional
Police Officer, Gadchiroli.
(iii)It appears that the applicant, on receipt of the letter
of Superintendent of Police, Gadchiroli on 31.12.2013 did not
make any inquiry and simply informed the Superintendent of
Police, Gadchiroli by his letter dated 13.1.2014 that the report be
filed. It also appears that the applicant confused the present report
filed for registration of offence punishable under Section 3(1)(ix)
of the Atrocities Act with another report being Crime
No.3038/2012 registered at Police Station Gadchiroli on 19.6.2012
for an offence punishable under Section 3(1)(x) of the Atrocities
Act, wherein the informant was a person different than the
respondent No.2. The name of the informant was Devidas Varuji
Jambhule. The applicant probably thought that the allegations
made in Crime No.3038/12 were similar to the allegations made in
the report dated 16.12.2013 by respondent No.2 and thought that
since the Crime No.3038/12 was already being inquired into by
him, it was not necessary for him to make a separate inquiry in the
present report dated 16.12.2013. This can be seen from the
remarks in paragraphs 3 and 4 of the letter dated 13.1.2014 sent
by the applicant to the Superintendent of Police, Gadchiroli.
(iv) After sending the letter dated 13.1.2014, applicant
received one letter dated 19.3.2014 from the respondent No.2,
wherein the respondent No.2 alleged that the applicant, though
directed by the Superintendent of Police, Gadchiroli, did not make
inquiry which he was duty bound to make under the provisions of
the Atrocities Act and failed to perform his duty in a lawful
manner. The respondent No.2 also called upon the applicant to
make necessary inquiry within 7 days and cautioned that his failure
to do so would lead to registration of offence punishable under
Section 4 of the Atrocities Act.
(v) It appears that thereafter, applicant sent another
letter on 20th March, 2014 to Police Station Officer, Gadchiroli. By
this letter applicant forwarded the original report dated 16.12.2013
to the Police Station Gadchiroli and also directed the Police Station
Officer to make inquiry into the matter and submit the inquiry
report to him while intimating the result of the inquiry also to
respondent No.2.
(vi) The Police Station Officer, Gadchiroli thereupon
made an inquiry into the matter and sent his report by letter dated
3.5.2014 to the applicant thereby informing him that his inquiry
revealed that there was no prima facie substance in the allegations
made in the report dated 16.12.2013. Upon receipt of this letter,
about which there is no dispute, it appears that the present
applicant did not take any action in the sense thright upper at he
neither passed any order accepting the report or otherwise nor
forwarded this report of Police Station Officer, Gadchiroli to
Superintendent of Police, Gadchiroli. Aggrieved by this attitude of
the applicant, respondent No.2 filed a criminal complaint before
the Court of Chief Judicial Magistrate, Gadchiroli urging him to set
the law in motion by issuing process for an offence punishable
under Section 4 of the Atrocities Act. Learned Chief Judicial
Magistrate found that as respondent No.2 failed to establish that
the applicant was in law under any duty to take action and
therefore held that allegations made against the applicant were
groundless and accordingly dismissed the complaint in view of the
provision of Section 203 of the Code of Criminal Procedure, on
16.6.2014.
(vii) Not satisfied with the order, the respondent No.2
preferred a revision application before the Court of Sessions Judge,
Gadchiroli which was registered as Criminal Revision Application
No.21/2014. Learned Sessions Judge after considering the merits
of the arguments advanced before him, disagreed with the reasons
given by the learned Chief Judicial Magistrate and found that there
was prima facie substance in the complaint and as such by his
order passed on 9th September, 2014 quashed and set aside the
order dated 16.6.2014 of learned Chief Judicial Magistrate and
directed him to proceed with the complaint as per the provisions of
law. This time, it were the applicant who has felt aggrieved and
therefore, he is before this Court in the present revision
application.
5. Learned counsel for the applicant has submitted that
basically there was no order issued by Superintendent of Police,
Gadchiroli in accordance with law appointing the present applicant
as Investigating Officer in this case and, therefore, as rightly held
by learned Chief Judicial Magistrate, applicant was not at all under
a duty in law to make inquiry into the matter and thus it cannot be
said that there was any failure or neglect to perform the duty by
the applicant. He submits that there is a format of order to be
issued under Rule 7 of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred
to as “the Atrocities Rules) framed under the provisions of
Atrocities Act in which the order appointing SubDivisional
Police
Officer as the Investigating Officer must be issued. He submits that
the letter dated 31st December, 2013, can by no stretch of
imagination, be construed to be an order issued in accordance with
Rule 7. His another contention is that even if it is presumed that it
was an order issued in accordance with law, still it cannot be said
that the applicant has failed to perform his duty and, therefore, no
offence can be said to have been made out under Section (4) of the
Atrocities Act against the applicant.
6. Learned counsel for the respondent No.2 submits that
the arguments canvassed on behalf of the applicant are
misconceived. According to him, the letter dated 31.12.2013 in its
purport and effect is nothing but an order issued in accordance
with the spirit of Rule 7 and therefore, ought to have been
considered accordingly by the applicant. He submits that even the
reasons given by the applicant in his letter dated 13.1.2014
requesting the superintendent of Police to file report dated
16.12.2013 are preposterous inasmuch as they indicate utter
disrespect regard for the provisions of law and also neglect to
perform duty imposed upon the applicant under the provisions of
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the Atrocities Act. He also submits that even though some
correction was tried to be made by the applicant when he wrote on
20th March, 2014 to the Police Station Officer of Police Station
Gadchiroli to make inquiry and submit his inquiry report in the
matter, later on when he received the report dated 3rd May, 2014
of the Police Station Officer, Gadchiroli, the applicant did not act
any further and thus, from that point onward the applicant
certainly has failed and neglected to perform his duty. Such failure
of the applicant, according to the learned counsel for the
respondent No.2, would fall within the scope and ambit of Section
4 of the Atrocities Act. He, therefore, submits that the order passed
by the learned Sessions Judge is completely legal and cannot be
said to be perverse or arbitrary so as to warrant interference with
it.
7. Learned Additional Public Prosecutor for respondent/
State has submitted that appropriate order be passed in the matter.
8. The first contention of the applicant regarding the letter
dated 31.12.2013 being not an order issued under Rule 7 of the
Atrocities Rules framed under the Atrocities Act cannot be
accepted. Although, it is true that this letter has not been issued in
conformity with the form prescribed for issuance of an order under
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Rule 7, upon a careful perusal of this letter I find that it indicates
nothing but a direction issued to the applicant by a competent
officer for making inquiry into the report filed under the provisions
of the Atrocities Act and submit his report to it. This letter dated
31.12.2013 clearly shows that the Superintendent of Police,
Gadchiroli, the competent authority, had forwarded the report
dated 16.12.2013 with a direction that the inquiry be made in
accordance with rules, emphasis supplied on Rules, and inquiry
report be submitted to his Office. When a direction has been
issued to make inquiry in accordance with the Rules, it has to be
construed as an order passed in conformity with the rules,
particularly Rule 7 of the Atrocities Rules. Therefore, after receipt
of this letter containing a direction issued under Rule 7, a duty was
cast upon the applicant to make an inquiry in accordance with law
and this duty, as it appears from the letter dated 13.1.2014 sent by
the applicant to the Superintendent of Police was not performed by
him. If the applicant was under an impression that an order in
conformity with the prescribed form was necessary, nothing had
prevented the applicant from bringing this fact to the notice of the
Superintendent of Police, Gadchiroli. If the applicant was of the
opinion that first offence ought to have been registered at Police
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Station Gadchiroli and then order under Rule 7 should have been
issued, the applicant was free to communicate his such opinion to
the Superintendent of Police, Gadchiroli. But, the applicant did not
do so and, therefore, one must say that the applicant at this point
of time was in the wrong box which displayed his failure and
neglect to perform duty cast upon him under the provisions of the
Atrocities Act.
9. However, the matter does not end here and further
developments which took place in this case require consideration
by this Court. It appears that the applicant received a letter dated
19.3.2014 from the respondent No.2 accusing him of failure to
perform duty under the Atrocities Act and also warning him that
his such failure, unless he made any amends, would lead to filing
of a complaint against him under Section 4 of the Atrocities Act. It
was at this point of time, the applicant appears to have woken up
to the need for performance of duty and, therefore, he shot a letter
dated 20th March, 2014 to the Police Station Officer, Gadchiroli
directing him to make inquiry and submit his report in the matter.
Learned counsel for the respondent No.2 submits that the duty cast
upon the SubDivisional
Police Officer is about making of inquiry
by himself and not shifting the responsibility for the same upon
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somebody else. I do not think that the SubDivisional
Police Officer
in directing the Police Station Officer, Gadchiroli Police Station to
make inquiry into the matter had shrugged off his responsibility.
The reason being that while making an inquiry, a SubDivisional
Police Officer is at liberty to take assistance from all concerned
which would include a Police Station Officer of the concerned
Police Station. By directing the Police Station Officer, Gadchiroli to
make an inquiry and submit his report, the SubDivisional
Police
Officer has only sought assistance of an officer who was in a better
position to make more effective inquiry than himself as the alleged
offence had been committed in the area over which Police Station
Gadchiroli had jurisdiction. Upon receipt of the inquiry report
from the Police Station Officer, further inquiry could possibly have
been made by the applicant and, therefore, I find no substance in
the argument that the applicant had shirked his responsibility
altogether in the matter. Thus, from the letter dated 20th March,
2014 what can be seen is that the applicant corrected his mistake
and initiated inquiry into the matter. Therefore, the lapse
committed and the neglect shown by the applicant at the initial
stage had been amended by the applicant subsequently. Now from
this stage onwards that we have to consider whether the neglect or
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failure to perform the duty by the applicant was continued or not.
10. On 3rd May, 2014, the Police Station Officer, in response
to the direction given to him by the applicant vide his letter dated
20th March, 2014, had sent his report to the applicant. This report
disclosed that the inquiry made by the Police Station Officer,
Gadchiroli did not yield any material warranting registration of the
offence alleged against Sharad Shankarrao Chavan in the report
dated 16.12.2013. Therefore, the Police Station Officer, Gadchiroli
opined that there was no substance in those allegations. Now, as
rightly submitted by the learned counsel for the respondent No.2,
some action on this report was expected to be taken by the
applicant and there is no record available to show that any action
on this report dated 3rd May, 2014 was taken by the applicant.
Learned counsel for the applicant also could not show to me any
material indicating that the applicant had acted in one way or the
other on the report dated 3rd May, 2014. If the applicant had not
acted upon this report, an inference of continued failure or neglect
to perform duty under the Atrocities Act would certainly be there.
But, before we come to any final conclusion, it is also necessary to
take into account subsequent developments.
11. It appears that after receipt of the report dated 3rd May,
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2014 the applicant did not take any action, in the sense that he
neither accepted the report nor rejected the report nor sought any
guidance or directions from the Superintendent of Police,
Gadchiroli. In other words, the applicant seems to have kept the
report dated 3rd May, 2014 under wraps and pending with him.
Some time thereafter, the complainant i.e. respondent No.2 filed a
complaint before the Court of Chief Judicial Magistrate, Gadchiroli
requesting the Chief Judicial Magistrate to take action against the
person, Sharad Shankarrao Chavan, accused to have committed an
offence punishable under Section 3(1)(ix) of the Atrocities Act.
This complaint was dismissed by the Chief Judicial Magistrate,
Gadchiroli against which a revision application was preferred by
the respondent No.2 before the Sessions Judge, Gadchiroli. The
Sessions Judge, Gadchiroli allowed this revision application and
quashed and set aside the order of dismissal of the complaint filed
by the respondent No.2 against Sharad Shankarrao Chavan and
directed the Chief Judicial Magistrate, Gadchiroli to proceed in the
matter in accordance with law. Thus, by an order of Sessions
Judge, Gadchiroli the complainant or respondent No.2 succeeded
in achieving what he could not achieve by filing a report against
Sharad Shankarrao Chavan on 16.12.2013 and pursuing the matter
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with the present applicant.
12. As the respondent No.2 succeeded in setting the law
into motion, the respondent No.2 also simultaneously filed another
complaint under Section 4 of the Atrocities Act against the present
applicant urging the Chief Judicial Magistrate, Gadchiroli to
proceed against him in accordance with law. As stated earlier, this
complaint was dismissed and later on it was restored by an order of
the Sessions Judge passed in Criminal Revision Application
No.21/2014, on 9th September, 2014. While these legal
proceedings were going on, the order of the Sessions Judge,
Gadchiroli restoring the complaint filed against Sharad Shankarrao
Chavan before the Chief Judicial Magistrate, Gadchiroli came to be
challenged before this Court in the criminal revision application
bearing Criminal Revision No.138 of 2014 filed by Sharad
Shankarrao Chavan. After hearing rival parties, this Court quashed
and set aside the order of the Sessions Judge, Gadchiroli and
confirmed the order of dismissal of the complaint against Sharad
Shankarrao Chavan, passed by the Chief Judicial Magistrate,
Gadchiroli by its Judgment rendered on 27th November, 2014. This
development would raise a question that if the complaint which
lies at the base of whole issue involved in this case itself has been
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dismissed, whether the applicant could be said to have neglected or
failed to perform his duty in the matter, when he did not pass any
specific order on the inquiry report dated 3rd May 2014 and kept
the report pending with him.
13. The answer to the issue would obviously be in the
negative. The reasons are not too for to seek. Even though the
applicant did not take any specific action, though under a duty in
law to take it upon the report dated 3rd May, 2014, if the complaint
which lies at the root of the whole issue itself has been found to be
groundless and has been dismissed by the learned Chief Judicial
Magistrate, Gadchiroli, which order has also been confirmed by this
Court, the inaction of the applicant cannot be said to be falling
within the expression “willful neglect of duty,” an essential
ingredient of the offence punishable under Section 4 of the
Atrocities Act. The applicant had kept the matter pending as he
did not pass any order on the report and during pendency of the
matter, as a subsequent development, the complaint itself was
found to be groundless by Courts of law. In a given case, keeping a
matter pending for inordinately long time can amount to willful
neglect of duty. But, as the complaint itself has been dismissed by
a Criminal Court, no mala fides can be attributed to the applicant
and, therefore, no willful act on his part can be found in keeping
the matter pending.
14. The learned Sessions Judge did not consider the aspect
of failure or neglect to perform the duty in its proper perspective.
In the circumstances noted in earlier paragraph, it is difficult to
imagine that the applicant could have been held to be liable for
willful neglect or performance of the duty. Therefore, the order
impugned herein has to be termed as illegal and arbitrary and it
deserves to be quashed and set aside. That apart the subsequent
developments as discussed earlier have also rendered the whole
issue infructuous.
15. Accordingly, the revision application is allowed and the
impugned order dated 9th September, 2014, passed by the learned
Sessions Judge, Gadchiroli is hereby quashed and set aside.
16. The order passed by the learned Chief Judicial
Magistrate, Gadchiroli on 16.6.2014 dismissing the complaint
under Section 203 of the Criminal Procedure Code is hereby
confirmed.
JUDGE
Print Page
negative. The reasons are not too for to seek. Even though the
applicant did not take any specific action, though under a duty in
law to take it upon the report dated 3rd May, 2014, if the complaint
which lies at the root of the whole issue itself has been found to be
groundless and has been dismissed by the learned Chief Judicial
Magistrate, Gadchiroli, which order has also been confirmed by this Court, the inaction of the applicant cannot be said to be falling
within the expression “willful neglect of duty,” an essential
ingredient of the offence punishable under Section 4 of the
Atrocities Act. The applicant had kept the matter pending as he
did not pass any order on the report and during pendency of the
matter, as a subsequent development, the complaint itself was
found to be groundless by Courts of law. In a given case, keeping a
matter pending for inordinately long time can amount to willful
neglect of duty. But, as the complaint itself has been dismissed by
a Criminal Court, no mala fides can be attributed to the applicant
and, therefore, no willful act on his part can be found in keeping
the matter pending.
14. The learned Sessions Judge did not consider the aspect
of failure or neglect to perform the duty in its proper perspective.
In the circumstances noted in earlier paragraph, it is difficult to
imagine that the applicant could have been held to be liable for
willful neglect or performance of the duty. Therefore, the order
impugned herein has to be termed as illegal and arbitrary and it
deserves to be quashed and set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION No.143 OF 2014
Dr. Rahul s/o. Dharmaraj Khade,
...VERSUS...
State of Maharashtra,
CORAM
: S.B. SHUKRE, J.
DATE : 12 th DECEMBER, 2014 .
Citation;2015 ALLMR(CRI)2770
3. Heard finally by consent of the parties.
4. The facts giving rise to the present criminal revision
application are stated in brief as under :
(i)On 16.12.2013, the respondent No.2 herein lodged a
report with the Police Station Ajni, Nagpur alleging that the
Research OfficerSharad
Shankarrao Chavan attached to Gadchiroli
Caste Scrutiny Committee using derogatory and humiliating
language against the members belonging to Mana, Schedule Tribes
Community, based upon a false and frivolous information, caused
injury and annoyance to the members of the Mana, Schedule Tribes
and thus committed an offence punishable under Section 3(1)(ix)
of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as, “the Atrocities
Act”).
(ii)The subject matter of the report lodged with Police
Station Ajni, pertained to an area within the jurisdiction of Police
Station Gadchiroli and, therefore, it was sent by Nagpur Police on
19.12.2013 to Superintendent of Police, Gadchiroli for taking
necessary action in accordance with law. On receipt of the same,
the Superintendent of Police, Gadchiroli, instead of sending the
report first to the concerned Police Station for registration of the
offence, forwarded the report dated 16.12.2013 to the applicant by
his letter dated 31.12.2013 for making necessary inquiry and
submitting his report to the Office of the Superintendent of Police,
Gadchiroli. At that time, the applicant was functioning as SubDivisional
Police Officer, Gadchiroli.
(iii)It appears that the applicant, on receipt of the letter
of Superintendent of Police, Gadchiroli on 31.12.2013 did not
make any inquiry and simply informed the Superintendent of
Police, Gadchiroli by his letter dated 13.1.2014 that the report be
filed. It also appears that the applicant confused the present report
filed for registration of offence punishable under Section 3(1)(ix)
of the Atrocities Act with another report being Crime
No.3038/2012 registered at Police Station Gadchiroli on 19.6.2012
for an offence punishable under Section 3(1)(x) of the Atrocities
Act, wherein the informant was a person different than the
respondent No.2. The name of the informant was Devidas Varuji
Jambhule. The applicant probably thought that the allegations
made in Crime No.3038/12 were similar to the allegations made in
the report dated 16.12.2013 by respondent No.2 and thought that
since the Crime No.3038/12 was already being inquired into by
him, it was not necessary for him to make a separate inquiry in the
present report dated 16.12.2013. This can be seen from the
remarks in paragraphs 3 and 4 of the letter dated 13.1.2014 sent
by the applicant to the Superintendent of Police, Gadchiroli.
(iv) After sending the letter dated 13.1.2014, applicant
received one letter dated 19.3.2014 from the respondent No.2,
wherein the respondent No.2 alleged that the applicant, though
directed by the Superintendent of Police, Gadchiroli, did not make
inquiry which he was duty bound to make under the provisions of
the Atrocities Act and failed to perform his duty in a lawful
manner. The respondent No.2 also called upon the applicant to
make necessary inquiry within 7 days and cautioned that his failure
to do so would lead to registration of offence punishable under
Section 4 of the Atrocities Act.
(v) It appears that thereafter, applicant sent another
letter on 20th March, 2014 to Police Station Officer, Gadchiroli. By
this letter applicant forwarded the original report dated 16.12.2013
to the Police Station Gadchiroli and also directed the Police Station
Officer to make inquiry into the matter and submit the inquiry
report to him while intimating the result of the inquiry also to
respondent No.2.
(vi) The Police Station Officer, Gadchiroli thereupon
made an inquiry into the matter and sent his report by letter dated
3.5.2014 to the applicant thereby informing him that his inquiry
revealed that there was no prima facie substance in the allegations
made in the report dated 16.12.2013. Upon receipt of this letter,
about which there is no dispute, it appears that the present
applicant did not take any action in the sense thright upper at he
neither passed any order accepting the report or otherwise nor
forwarded this report of Police Station Officer, Gadchiroli to
Superintendent of Police, Gadchiroli. Aggrieved by this attitude of
the applicant, respondent No.2 filed a criminal complaint before
the Court of Chief Judicial Magistrate, Gadchiroli urging him to set
the law in motion by issuing process for an offence punishable
under Section 4 of the Atrocities Act. Learned Chief Judicial
Magistrate found that as respondent No.2 failed to establish that
the applicant was in law under any duty to take action and
therefore held that allegations made against the applicant were
groundless and accordingly dismissed the complaint in view of the
provision of Section 203 of the Code of Criminal Procedure, on
16.6.2014.
(vii) Not satisfied with the order, the respondent No.2
preferred a revision application before the Court of Sessions Judge,
Gadchiroli which was registered as Criminal Revision Application
No.21/2014. Learned Sessions Judge after considering the merits
of the arguments advanced before him, disagreed with the reasons
given by the learned Chief Judicial Magistrate and found that there
was prima facie substance in the complaint and as such by his
order passed on 9th September, 2014 quashed and set aside the
order dated 16.6.2014 of learned Chief Judicial Magistrate and
directed him to proceed with the complaint as per the provisions of
law. This time, it were the applicant who has felt aggrieved and
therefore, he is before this Court in the present revision
application.
5. Learned counsel for the applicant has submitted that
basically there was no order issued by Superintendent of Police,
Gadchiroli in accordance with law appointing the present applicant
as Investigating Officer in this case and, therefore, as rightly held
by learned Chief Judicial Magistrate, applicant was not at all under
a duty in law to make inquiry into the matter and thus it cannot be
said that there was any failure or neglect to perform the duty by
the applicant. He submits that there is a format of order to be
issued under Rule 7 of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred
to as “the Atrocities Rules) framed under the provisions of
Atrocities Act in which the order appointing SubDivisional
Police
Officer as the Investigating Officer must be issued. He submits that
the letter dated 31st December, 2013, can by no stretch of
imagination, be construed to be an order issued in accordance with
Rule 7. His another contention is that even if it is presumed that it
was an order issued in accordance with law, still it cannot be said
that the applicant has failed to perform his duty and, therefore, no
offence can be said to have been made out under Section (4) of the
Atrocities Act against the applicant.
6. Learned counsel for the respondent No.2 submits that
the arguments canvassed on behalf of the applicant are
misconceived. According to him, the letter dated 31.12.2013 in its
purport and effect is nothing but an order issued in accordance
with the spirit of Rule 7 and therefore, ought to have been
considered accordingly by the applicant. He submits that even the
reasons given by the applicant in his letter dated 13.1.2014
requesting the superintendent of Police to file report dated
16.12.2013 are preposterous inasmuch as they indicate utter
disrespect regard for the provisions of law and also neglect to
perform duty imposed upon the applicant under the provisions of
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the Atrocities Act. He also submits that even though some
correction was tried to be made by the applicant when he wrote on
20th March, 2014 to the Police Station Officer of Police Station
Gadchiroli to make inquiry and submit his inquiry report in the
matter, later on when he received the report dated 3rd May, 2014
of the Police Station Officer, Gadchiroli, the applicant did not act
any further and thus, from that point onward the applicant
certainly has failed and neglected to perform his duty. Such failure
of the applicant, according to the learned counsel for the
respondent No.2, would fall within the scope and ambit of Section
4 of the Atrocities Act. He, therefore, submits that the order passed
by the learned Sessions Judge is completely legal and cannot be
said to be perverse or arbitrary so as to warrant interference with
it.
7. Learned Additional Public Prosecutor for respondent/
State has submitted that appropriate order be passed in the matter.
8. The first contention of the applicant regarding the letter
dated 31.12.2013 being not an order issued under Rule 7 of the
Atrocities Rules framed under the Atrocities Act cannot be
accepted. Although, it is true that this letter has not been issued in
conformity with the form prescribed for issuance of an order under
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Rule 7, upon a careful perusal of this letter I find that it indicates
nothing but a direction issued to the applicant by a competent
officer for making inquiry into the report filed under the provisions
of the Atrocities Act and submit his report to it. This letter dated
31.12.2013 clearly shows that the Superintendent of Police,
Gadchiroli, the competent authority, had forwarded the report
dated 16.12.2013 with a direction that the inquiry be made in
accordance with rules, emphasis supplied on Rules, and inquiry
report be submitted to his Office. When a direction has been
issued to make inquiry in accordance with the Rules, it has to be
construed as an order passed in conformity with the rules,
particularly Rule 7 of the Atrocities Rules. Therefore, after receipt
of this letter containing a direction issued under Rule 7, a duty was
cast upon the applicant to make an inquiry in accordance with law
and this duty, as it appears from the letter dated 13.1.2014 sent by
the applicant to the Superintendent of Police was not performed by
him. If the applicant was under an impression that an order in
conformity with the prescribed form was necessary, nothing had
prevented the applicant from bringing this fact to the notice of the
Superintendent of Police, Gadchiroli. If the applicant was of the
opinion that first offence ought to have been registered at Police
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Station Gadchiroli and then order under Rule 7 should have been
issued, the applicant was free to communicate his such opinion to
the Superintendent of Police, Gadchiroli. But, the applicant did not
do so and, therefore, one must say that the applicant at this point
of time was in the wrong box which displayed his failure and
neglect to perform duty cast upon him under the provisions of the
Atrocities Act.
9. However, the matter does not end here and further
developments which took place in this case require consideration
by this Court. It appears that the applicant received a letter dated
19.3.2014 from the respondent No.2 accusing him of failure to
perform duty under the Atrocities Act and also warning him that
his such failure, unless he made any amends, would lead to filing
of a complaint against him under Section 4 of the Atrocities Act. It
was at this point of time, the applicant appears to have woken up
to the need for performance of duty and, therefore, he shot a letter
dated 20th March, 2014 to the Police Station Officer, Gadchiroli
directing him to make inquiry and submit his report in the matter.
Learned counsel for the respondent No.2 submits that the duty cast
upon the SubDivisional
Police Officer is about making of inquiry
by himself and not shifting the responsibility for the same upon
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somebody else. I do not think that the SubDivisional
Police Officer
in directing the Police Station Officer, Gadchiroli Police Station to
make inquiry into the matter had shrugged off his responsibility.
The reason being that while making an inquiry, a SubDivisional
Police Officer is at liberty to take assistance from all concerned
which would include a Police Station Officer of the concerned
Police Station. By directing the Police Station Officer, Gadchiroli to
make an inquiry and submit his report, the SubDivisional
Police
Officer has only sought assistance of an officer who was in a better
position to make more effective inquiry than himself as the alleged
offence had been committed in the area over which Police Station
Gadchiroli had jurisdiction. Upon receipt of the inquiry report
from the Police Station Officer, further inquiry could possibly have
been made by the applicant and, therefore, I find no substance in
the argument that the applicant had shirked his responsibility
altogether in the matter. Thus, from the letter dated 20th March,
2014 what can be seen is that the applicant corrected his mistake
and initiated inquiry into the matter. Therefore, the lapse
committed and the neglect shown by the applicant at the initial
stage had been amended by the applicant subsequently. Now from
this stage onwards that we have to consider whether the neglect or
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failure to perform the duty by the applicant was continued or not.
10. On 3rd May, 2014, the Police Station Officer, in response
to the direction given to him by the applicant vide his letter dated
20th March, 2014, had sent his report to the applicant. This report
disclosed that the inquiry made by the Police Station Officer,
Gadchiroli did not yield any material warranting registration of the
offence alleged against Sharad Shankarrao Chavan in the report
dated 16.12.2013. Therefore, the Police Station Officer, Gadchiroli
opined that there was no substance in those allegations. Now, as
rightly submitted by the learned counsel for the respondent No.2,
some action on this report was expected to be taken by the
applicant and there is no record available to show that any action
on this report dated 3rd May, 2014 was taken by the applicant.
Learned counsel for the applicant also could not show to me any
material indicating that the applicant had acted in one way or the
other on the report dated 3rd May, 2014. If the applicant had not
acted upon this report, an inference of continued failure or neglect
to perform duty under the Atrocities Act would certainly be there.
But, before we come to any final conclusion, it is also necessary to
take into account subsequent developments.
11. It appears that after receipt of the report dated 3rd May,
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2014 the applicant did not take any action, in the sense that he
neither accepted the report nor rejected the report nor sought any
guidance or directions from the Superintendent of Police,
Gadchiroli. In other words, the applicant seems to have kept the
report dated 3rd May, 2014 under wraps and pending with him.
Some time thereafter, the complainant i.e. respondent No.2 filed a
complaint before the Court of Chief Judicial Magistrate, Gadchiroli
requesting the Chief Judicial Magistrate to take action against the
person, Sharad Shankarrao Chavan, accused to have committed an
offence punishable under Section 3(1)(ix) of the Atrocities Act.
This complaint was dismissed by the Chief Judicial Magistrate,
Gadchiroli against which a revision application was preferred by
the respondent No.2 before the Sessions Judge, Gadchiroli. The
Sessions Judge, Gadchiroli allowed this revision application and
quashed and set aside the order of dismissal of the complaint filed
by the respondent No.2 against Sharad Shankarrao Chavan and
directed the Chief Judicial Magistrate, Gadchiroli to proceed in the
matter in accordance with law. Thus, by an order of Sessions
Judge, Gadchiroli the complainant or respondent No.2 succeeded
in achieving what he could not achieve by filing a report against
Sharad Shankarrao Chavan on 16.12.2013 and pursuing the matter
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with the present applicant.
12. As the respondent No.2 succeeded in setting the law
into motion, the respondent No.2 also simultaneously filed another
complaint under Section 4 of the Atrocities Act against the present
applicant urging the Chief Judicial Magistrate, Gadchiroli to
proceed against him in accordance with law. As stated earlier, this
complaint was dismissed and later on it was restored by an order of
the Sessions Judge passed in Criminal Revision Application
No.21/2014, on 9th September, 2014. While these legal
proceedings were going on, the order of the Sessions Judge,
Gadchiroli restoring the complaint filed against Sharad Shankarrao
Chavan before the Chief Judicial Magistrate, Gadchiroli came to be
challenged before this Court in the criminal revision application
bearing Criminal Revision No.138 of 2014 filed by Sharad
Shankarrao Chavan. After hearing rival parties, this Court quashed
and set aside the order of the Sessions Judge, Gadchiroli and
confirmed the order of dismissal of the complaint against Sharad
Shankarrao Chavan, passed by the Chief Judicial Magistrate,
Gadchiroli by its Judgment rendered on 27th November, 2014. This
development would raise a question that if the complaint which
lies at the base of whole issue involved in this case itself has been
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dismissed, whether the applicant could be said to have neglected or
failed to perform his duty in the matter, when he did not pass any
specific order on the inquiry report dated 3rd May 2014 and kept
the report pending with him.
13. The answer to the issue would obviously be in the
negative. The reasons are not too for to seek. Even though the
applicant did not take any specific action, though under a duty in
law to take it upon the report dated 3rd May, 2014, if the complaint
which lies at the root of the whole issue itself has been found to be
groundless and has been dismissed by the learned Chief Judicial
Magistrate, Gadchiroli, which order has also been confirmed by this
Court, the inaction of the applicant cannot be said to be falling
within the expression “willful neglect of duty,” an essential
ingredient of the offence punishable under Section 4 of the
Atrocities Act. The applicant had kept the matter pending as he
did not pass any order on the report and during pendency of the
matter, as a subsequent development, the complaint itself was
found to be groundless by Courts of law. In a given case, keeping a
matter pending for inordinately long time can amount to willful
neglect of duty. But, as the complaint itself has been dismissed by
a Criminal Court, no mala fides can be attributed to the applicant
and, therefore, no willful act on his part can be found in keeping
the matter pending.
14. The learned Sessions Judge did not consider the aspect
of failure or neglect to perform the duty in its proper perspective.
In the circumstances noted in earlier paragraph, it is difficult to
imagine that the applicant could have been held to be liable for
willful neglect or performance of the duty. Therefore, the order
impugned herein has to be termed as illegal and arbitrary and it
deserves to be quashed and set aside. That apart the subsequent
developments as discussed earlier have also rendered the whole
issue infructuous.
15. Accordingly, the revision application is allowed and the
impugned order dated 9th September, 2014, passed by the learned
Sessions Judge, Gadchiroli is hereby quashed and set aside.
16. The order passed by the learned Chief Judicial
Magistrate, Gadchiroli on 16.6.2014 dismissing the complaint
under Section 203 of the Criminal Procedure Code is hereby
confirmed.
JUDGE
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