The absence of necessary averments regarding caste identity and public view in the FIR led to the quashing of charges under the Atrocities Act.

ORDER :

(J.C. DOSHI, J.)

1. Rule returnable forthwith. Learned APP waives service of rule for respondent No.1 – State and learned advocate Mr.Minhaj Shaikh waives service of rule for respondent No.2.

2. At the outset, learned advocate Mr.Mirza submits that the petitioners have not pressed the present petition insofar as offences punishable under Sections 323, 324, 504, 506 (2) and 114 of IPC are concerned and the same is recorded by the coordinate Bench of this Court vide order dated 16.09.2019. Hence, the petitioners press this petition only qua offences punishable under Section 3(2)(va) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “Atrocities Act”).

3. Referring to the FIR, learned advocate Mr.Mirza would submit that the alleged offence did not take place within public domain. He would further submit that on plain reading of FIR, it does not indicate that the first informant has mentioned in FIR that he belongs to a particular caste i.e. Scheduled Caster or Scheduled Tribe and having knowledge of the same, the accused has abused him and insulted him for the caste. Therefore, since ingredients of offence under Section 3(2)(va) of the Atrocities Act are not satisfied, the offence may be quashed. Learned advocate Mr.Mirza referred to the judgment of coordinate Bench of this Court in case of Sandip @ Sanjay @ Tako Chhaganbhai Ughreja vs. State of Gujarat and another, being Criminal Misc. Application No.15188 of 2014. Upon above submissions, he would submit to quash the FIR as far as offence under the Atrocities Act are concerned.

4. On the other hand, learned advocate Mr.Minghaj Shaikh appearing for the first informant fervently objected to relief claimed by the petitioners on the submission that the complainant as well as other persons were present on the spot and therefore, since more than one persons are present at the time of offence, it can be said that offence took place within the domain and it satisfies the ingredients of Section 3(1)(x) of Atrocities Act. Upon above submissions, he would submit to dismiss this petition even qua offences under the Atrocities Act.

5. Learned APP Mr.Rohan Raval appearing for the respondent State adopts the arguments of learned advocate Mr.Minjaj Shaikh and submits to pass necessary orders.

6. I have heard learned advocates for both sides.

7. On 16.09.2019, the coordinate Bench of this Court has passed the following order :

“1. Learned advocate Mr.Minhaj Shaikh states at bar that he has instructions to appear for respondent No.2 and seeks permission to file appearance. Permission is granted.

2. The learned advocate for the applicants does not press this application qua the offence under the provisions of the Indian Penal Code is concerned.

3. Prima facie, it appears that required ingredient of the offence punishable under Section 3 of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocity) Act is that there should be averments to the effect that the accused person does not belong to or member of the SC/ ST Castes. Therefore, considering the decision rendered in the case of Georige Pentaiah v/s. State of Andra Pradesh reported in 2008 (12) SCC 531, present application deserves consideration.

4. Issue notice to the respondents, making it returnable on 09.01.2020. Learned A.P.P. Mr.Pranav Trivedi and learned advocate Mr.Minhaj Shaikh waive service of notice for respondent Nos.1,3 and 2 respectively.

5. Meanwhile, relief in terms of para 8(C) is granted so far as offence punishable under the provisions of the SC/ST Act is concerned. Direct service is permitted.”

8. In the FIR, following offences under the Atrocities Act are registered against the accused :

“3. Punishments for offences atrocities.— [(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—

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(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—

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[(va) commits any offence specified in the Schedule, against a person or property, kno