IMPORTANT POINT
The court established that adverse remarks in performance evaluations by superior officers do not amount to caste-based harassment under the SC/ST (POA) Act unless there is clear evidence of malice or intent to discriminate based on caste.

JUDGMENT/ORDER

BHARAT P.DESHPANDE, J. - Both these petitions are taken up for arguments together since they relate to the same complaint lodged by Respondent No.2, which resulted in the lodging of FIR No. 98/2017. On the basis of such FIR, investigations were carried out, and two separate charge sheets have been filed. The first charge sheet is pending before the Special Court/Sessions Judge, North Goa, vide Special Case No.1/2008 for the offences punishable under Sec. 167 of IPC read with Sec. 3(1)(ix) of Schedule Castes and Scheduled Tribes (POA) Act. Another charge sheet was filed against Petitioner No.2 in Writ Petition No.182/2017 only under Sec. 167 of IPC since he belongs to the scheduled caste community.

2. Heard learned Counsel Mr Eeshan Usapkar for the Petitioners, learned Public Prosecutor Mr S.G. Bhobe and learned Additional Public Prosecutor Mr P. Faldessai, appear for the State and learned Counsel Mr Preetam Talaulikar appears for Respondent No.2.

3. Mr Usapkar learned Counsel for the Petitioners would submit that the FIRs nowhere disclosed the commission of offences under Sec. 3(1)(ix) of SCST (POA) Act and Sec. 167 of IPC and, therefore, registration of such FIR against the Petitioner and further proceedings is clearly an abuse of the process of law. In his submissions, the learned Counsel for the Petitioners claimed that all the Petitioners were working in different posts and higher to the post occupied by Respondent No.2 in BSNL, and as the superior officers, they have recorded some adverse entries in the annual reports of Respondent No.2. Such reports were recorded as a duty of the superior officers and on the observations of the performance of Respondent No.2. Recording such reports and observing the performance of Respondent No.2 would not in any manner amount to an offence under Sec. 3 of the Special Act. He then submitted that such annual confidential reports and specifically the observations made by the Petitioners from time to time were considered by the higher authorities. He then submitted that though adverse remarks were expunged, the reason for doing so was completely different. According to him, the remarks were expunged only because the concerned authorities failed to communicate such adverse entries to Respondent No.2, thereby calling upon him to explain. He would then submit that only because such adverse entries were expunged would not in any manner establish that such entries were incorporated with a malafide intention or that such entries were completely false entries. Learned Counsel for the Petitioners would then submit that whatever entries were made and the transfer orders of Respondent No.2 were issued, were only as a part of duty and not on the basis of any intention or malice with the said person.

4. The learned Counsel would then submit that if the entire complaint is read as a whole, would nowhere show that the overt act alleged against the Petitioners were carried out only with the knowledge that Respondent No.2 belongs to a particular category and in order to harass him. He, therefore, submitted that registration of such FIR and initiation of the proceedings, amounts to abuse of the process. In this respect, he placed reliance on the following decisions:-

(1) State of Maharashtra vs. Shashikant; 2013 ALL MR (Cri) 3060,

(2) A Chocklingam Regional Director and Ors. vs. State of Gujarat and Ors.; (2014) SCC OnLine Guj 9083,

(3) Mr. S. Muralidharan vs. Mr. M. Muthukaruppan; 2006 SCC OnLine Mad 1591,

(4) Gunmala Sales Pvt. Ltd. vs. Anu Mehta and Ors.; 2014 ALL MR (Cri) 4446 (S.C.).

5. Learned Public Prosecutor appearing for the State would submit that the contents of the FIR were found prima facie against the Petitioners and ingredients of Sec. 3(1)(ix) are found to be established. He would submit that the charge sheet is already filed, which clearly goes to show that there is sufficient material to proceed with the trial. At this stage, no extraordinary case is made out for the grant of the r