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2017 Supreme(Kar) 488
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ASHOK B. HINCHIGERI, J.
National Institute of Rock Mechanics, Bengaluru – Petitioner
Versus
Assistant Commissioner and Executive Magistrate Kolar Sub-Division and Others – Respondents
WRIT PETITION No.25568 OF 2017 (GM-RES)
Decided On : 17-07-2017
For the Petitioner:Sri. M.N. Kumar, Advocate
For the Respondent:Sri. T.L. Kiran Kumar, AGA for Sri. Clifton D’Rozario, Advocate
Headnote:KARNATAKA STATE COMMISSION SAFAI KARAMCHARIS ACT, 2013 -Section 8 – Power of State Commission – Complaint of manual scavenging – Directions to Police to register FIR – State Commission has to enquire into specific grievances of Karmacharis and take up matter with concerned authorities – As per Sections 31, 32 of Act of 2013, State Commission has power to take up remonstrance of manual scavenging with Police – Directions to Police to register FIR, is legal.
PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGERS & THEIR REHABILITATION ACT, 2013 – Section 3(1)(j) – Manual scavenging – Safai Karmacharis belonging to Scheduled Caste, made to do manual scavenging by persons not belonging to Scheduled Caste or Scheduled Tribe – Such persons are liable to be punished under Section 3(1)(j) of Act of 1989.
PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGERS & THEIR REHABILITATION ACT, 2013 – Section 3(1)(j) – Sections 5, 21, 3 & Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act (46 of 1993), Section 17(3) – Lodging of complaint – Complaint of manual scavenging – Plea of petitioner that complaint has to be lodged by authorized officer with Executive Magistrate on basis of Section 17(3) of Act of 1993 – Section 21 of Act of 2013 only enables Govt., to confer certain powers on Executive Magistrate – No provision in 2013 Act corresponding to S. 17 (3) of 1993 Act – 2013 Act is governing Act in instant case – Section 3 of Act of 2013 provides for primacy of 2013 Act over all other Acts – Lodging of complaint only with Executive Magistrate, is not necessary.
PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGERS & THEIR REHABILITATION ACT, 2013 – Section 3(1)(j) – Sections 5, 11, 12 – Complaint of manual scavenging – Non-conduct of survey by Municipal Officer – Effect – Municipal Commissioner affirming manual scavenging and also identifying persons employed in it – Non-conduct of survey by concerned authorities not fatal to complaint – Aggrieved persons can seek punitive actions.
PROHIBITION OF EMPLOYMENT AS MANUAL SCAVENGERS & THEIR REHABILITATION ACT, 2013 – Section 3(1)(j) – Sections 5, 10 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989), Section 3 – Complaint of manual scavenging – Limitation – Safai Karmacharis belonging to Scheduled Caste, made to do manual scavenging by persons not belonging to Scheduled Caste or Scheduled Tribe – Persons to be tried under SC ST Act – Period of 3 months limitation prescribed under Section 10 of 2013 Act, would not apply.
CODE OF CRIMINAL PROCEDURE, 1973 – Section 2(d) – Complaint – It is not necessary for complainant to set out in complaint all evidence in possession – Merely because complaint does not contain material particulars, complaint cannot be closed.
CODE OF CRIMINAL PROCEDURE, 1973 – Section 154 – FIR – Pre-registration hearing – Complaint of manual scavenging – Plea of petitioner that it was not given opportunity to cross-examine informant and Municipal Commissioner, who has given adverse report – State Commission giving adequate opportunity to petitioner to present its case – Presence of advocate of petitioner at time of spot-inspection of petitioner's establishment – Every offence under Section 22 of Prohibition of Employment as Manual Scavengers & their Rehabilitation Act, (25 of 2013) is cognizable in nature, mandatory for police to register FIR and conduct investigation – Pre-registration hearing, cannot be granted.
CODE OF CRIMINAL PROCEDURE, 1973 – Sections 482, 154, 173, 2(d) – Quashing of FIR – Ground that complaint not disclosing materials for holding investigation – After conducting spot-inspection Municipal Commissioner affirming case of manual scavenging – FIR can be filed against unknown persons – On completion of investigation, Police may unearth person responsible for offence – FIR cannot be quashed.
CODE OF CRIMINAL PROCEDURE, 1973 – Sections 482, 154 – Quashing of FIR – Complaint of manual scavenging – Ground that Safai Karamcharis or their union not showing them as manual scavengers in petitions filed before Tribunal – Also plea that petitioners not owner of premises in question – Such grounds cannot resist registration of FIR.
The petitioner has called into question the order, dated 09.06.2017 (Annexure-Q) passed by the Karnataka State Commission for Safai Karmacharis. The petitioner has also sought the relief of declaration that the complaint (Annexure-F) of manual scavenging filed by the third respondent before the said State Commission is not maintainable.
2. Sri M.N.Kumar, learned counsel for the petitioner submits that the complaint filed by the third respondent does not disclose the material particulars. It does not even disclose on what date the alleged manual scavenging took place; it does not state as to who instructed the karmacharis to do the manual scavenging. He submits that the petitioner does not have the scavengers on its rolls. He submits that the housekeeping is being done by the workers sent by the contractor.
3. He submits that the said State Commission does not have the power to entertain the complaints of manual scavenging. He submits that entertaining such a complaint and passing the orders thereon are not the functions assigned to it under Section 8 of the Karnataka State Commission for Safai Karmacharis Act, 2012 (‘KSCSK Act’ for short).
4. He submits that under Section 21 of Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (‘PEMSR Act’ for short), it is the Executive Magistrate who has to hold the trial for the offences under the said Act. He submits that the third respondent has not given any complaint to the Chief Executive Officer of the local body under Section 11 of the PEMSR Act. Under Section 11 of the said Act it is for the Chief Executive Officer of the Municipality to hold the survey and identify the persons engaged or employed in manual scavenging.
5. He submits that Section 10 of the PEMSR Act prescribes three months’ period of limitation for filing the complaint. When the date of the offence itself is not mentioned, the computation of limitation period cannot be done at all. He relies on this Court’s order, dated 23.09.2015 passed in Criminal Petition No.1684/2015 in the case of SMT.JYOTHI C. vs. THE TAHSILDAR AND ANOTHER.
6. He submits that the petitioner has not been given an opportunity to cross-examine the complainant and the person, who has given a report adverse to the interests of the petitioner. He submits that the petitioner’s Officer had no option but to sign the order sheet of the proceedings before the said State Commission.
7. Sri Clifton D’Rozario, learned counsel for the respondent Nos.3 and 5 to 8 submits that there is no underground sewage system in the petitioner’s estate. The petitioner itself has unequivocally admitted of the said position in para 2(d) of its statement of objections filed in Case No. SKC 90/2016-17 before the Karnataka State Commission for Safai Karmacharis. He submits that there are 43 kakkas gundis (soakpits) in the petitioner’s establishment. The toilets are connected to kakkas gundis. The fifth respondent Ramesh Babu, sixth respondent Lakshmaiah and another manual scavenger, namely, Sri Y.Meshak (who is not a party to these proceedings) have been doing the work of cleaning the toilets, kakkas chambers, kakkas gundis (soakpits). Their work involves coming directly in touch with the human excreta. They have to enter the soakpit, lift the excreta with bare hands and carry it to other pits.
8. He submits that the petitioner is a State within the meaning of Article 12 of the Constitution of India. It has not produced any documents to show that it has purchased or hired the machine for cleaning the chambers and soakpits in its establishment. Admittedly it does not have the underground drainage system. He has filed the list of accidents suffered by the manual scavengers in the soakpits. As per the said list, as many as 64 manual scavengers have met their death in the course of their doing the manual scavenging work, between 1995 and 2017, in Karnataka.
9. He submits that the respondent Nos.7 and 8 are unnecessarily made parties to this petition.
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