Enter Name
 
 
   Enter Your Email
 
 
 View Guest Book
Disclaimer





Introduction
 

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been enacted by the Parliament to protect the members of the Scheduled Castes and Scheduled Tribes from ‘atrocities’, as defined under the Act. These atrocities are generally defined as social disabilities, personal atrocities, atrocities affecting properties, false legal proceedings/prosecution, political disabilities and economic exploitation. One of the salient features of the Act is that it has created new types of offences, which were hitherto not covered under Indian Penal Code (IPC) or any other Act, thus vastly expanding the horizon of criminal liability. These offences may be described as hate crimes or bias crimes committed primarily because of caste discrimination. This is the probably the strongest Act ever passed by the Indian Parliament. (You cannot ask for more in democracy)? All offences listed in the Act are cognizable.  The accused is not entitled to get anticipatory bail from the Court. On conviction, the minimum punishment is imprisonment for a term not less then 6 months and fine. The property of accused may be attached and forfeited by the court. If accused is convicted he cannot get benefit of probation.

 However, the implementation of the Act has largely remained tardy and SCs and STs have not been able to derive full benefits available under the Act. There appears to be a clear lack of will on the part of law enforcement officers to take action. The Supreme Court Of India in 1992 in State of Karnatka Vs. Appa Balu Ingale1 said that more than 75 percent of the cases under this Act are ending in acquittal at all levels. In Andhara Pradesh in almost all the 226 incidents of atrocities reported, the accused could easily evade the arms of law because of technicalities and tacit connivance of law enforcement authorities. Ironically enough, despite poor performance of the Act, the high caste people are demanding its withdrawal on the ground that the Act is being misused by SCs and STs against them.

This booklet aims at educating the SC and ST Government servants, employees of Public Sector Undertakings, Autonomous Bodies, Semi-Government Organizations, Universities, Medical Institutions, Banking, Insurance, Private Sector or employees of other organizations etc about the revolutionary provisions made by the Parliament in the Act. Regretfully, despite more than 12 –13 years of the enactment of the Act, many SCs and STs are not fully aware of the provisions contained in it. A recent research done in Delhi has revealed that 33 percent of SC employees suffer ‘atrocities’ in the hands of non-scheduled castes but only 13 percent lodge complaint with the police.2 Most of them silently bear the humiliation and prefer not to complaint to police, courts or senior officers fearing backlash. This sadly proves the point that SC and ST employees are either not aware of the provisions of the Act or they are afraid of harassment if they take protection under this Act. This booklet intends to motivate SC and ST employees to wake up and recognize their rights under the Act. An effort has been made to concentrate on the specific provision of protection of SC and ST employees from FALSE PROSECUTION, FALSE LITIGATION AND FALSE LEGAL PROCEEDINGS.

It is a common knowledge that the SCs and STs employees are intentionally targeted against at the workplace and are subjected to various false legal proceedings such as explanations, show cause notices, charge sheets, enquiries, suspensions, withdrawal of promotions, delaying promotions, dismissals or termination of services. They are subjected to false suits, criminal and legal proceedings, which ultimately turn out to be untrue. They suffer in the hands of non-SCs and STs solely due to deep-rooted caste prejudices. The hapless SC and ST employee is subjected to avoidable intentional humiliation and is forced to lose the benefits under the service rules for which he/she was entitled.

Are you also the one who has suffered ‘atrocity’ in the hands of non-SCs or non-STs? Do you have the courage, conviction and self-motivation to fight out your case with the help of protection available under the Act? If the answer is YES then the following information can change your life and bring back the lost honour to you and your family and your community.

 Before moving ahead please answer the following:

        Do you know that instituting false, malicious or vexatious suit or criminal or other legal proceedings against members of scheduled castes and a scheduled tribes amounts to an offence under the Act? [SECTION 3 (1) (viii)] A recent research has revealed that only 60 percent of SCs IAS, PCS, doctors and other Officers were aware about this provision. 2   It may also be interesting to know that NO case seems to have been filed under this section so far by the SCs or STs.

        Do you know that giving any false or frivolous information to any public servant and thereby causing such public servant to use his lawful power to the injury or annoyance of a member of scheduled castes and a scheduled tribes amount to an offence under the Act? [SECTION 3 (1) (ix)] A recent research has revealed that only 53 percent of SCs IAS, PCS, doctors and other Officers were aware about this section. 2

         Do you know that intentionally insulting or intimidating with intent to humiliate a member of a scheduled caste or a scheduled tribe in any place of public view is punishable under the Act? [SECTION 3 (1) (x)]

        Do you know that whoever, being a public servant but not being a member of a scheduled caste or a scheduled tribe, wilfully neglects his/her duties required to be performed by him/her under this Act is also liable to be severely punished? [SECTION 4]

You may have by now judged your own awareness about the above provisions in the Act. Unfortunately, these provisions have remained on paper because of ignorance on the part of SCs and STs employees. It is shocking to know that no case has ever been filed under SECTION 3 (1) (viii) and (ix) in the country. However, enlightened and educated SCs and STs employees can show the way to their poor brothers and sisters by taking advantage of the protections available under the Act. Let us now discuss the above FOUR of the Act one by one to know how an SC or ST employee can benefit from them in the event of ‘atrocity’ committed upon him/her:


Protection From Atrocities By False Litigation
CLAUSE 3 OF THE ACT READS AS UNDER:

Punishment for offences of atrocities- (1) Whoever, not being a member of a scheduled castes or a scheduled tribes-              

(viii) Institute false, malicious or vexatious suit or criminal or other legal proceedings against a members of a scheduled castes or a scheduled tribes;

(ix) Gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a members of a scheduled castes or a scheduled tribes;

(x) Intentionally insults or intimidates with intent to humiliate a members of a scheduled castes or a scheduled tribes in any place of public view;

Shall be punishable with imprisonment for a term, which shall not be less than 6 (six) months but which may extend to 5 (five) years and with fine.

CLAUSE 4 OF THE ACT READS AS UNDER:

‘Whoever, being a public servant but not being a member of a scheduled caste or a scheduled tribe, wilfully neglects his duties required to be performed by him under this Act’-

 Shall be punishable with imprisonment for a term which shall not be less than 6 (six) months but which may extend to 1 (one) year. 

 


A Case Study

In order to know the circumstances under which above FOUR sections of the Act may be used by an employee who has been subjected to ‘atrocities’, let us see the following case study:

Mr. Mohan, a member of scheduled caste is working as assistant manager in a Government undertaking.  Its MD, a non-SC, heads the undertaking.  Mr. Mohan had joined service in the year 1975 and has consistently good service record.  He is hard working and has never faced any disciplinary proceedings. Mr. Mohan was senior most and also deserved promotion as per service rules of the undertaking. However, things suddenly started taking reverse turn in 1995 when time for his promotion to the post of Manager came near. The MD on several occasions told Mr. Mohan that he was inefficient and withdrew all-important work from him. In one of the official meetings the MD remarked that Mr. Mohan obtained his job through on reservation due to his being an SC. One day Mr. Mohan heard that the MD has received a complaint from a private contractor, a non-SC, relating to some irregularities Mr. Mohan had allegedly committed in the year 1990.  In the written complaint, the private contractor alleged that Mr. Mohan was a thoroughly corrupt officer, had assets disproportionate to his known sources of income, his children were studying in expensive schools and he was doing benami business in the name of his wife. On hearing the rumor of false complaint against him, Mr. Mohan immediately met to MD and told him that the private contractor has made the complaint against him due to caste prejudice as he belongs to SC community. Mr. Mohan also explained that the complaint is being made as he is expecting his promotion in next few months. Mr. Mohan was accompanied by two of his colleagues to support his contention. He also sent a written complaint under registered post to the Chairman of the Undertaking alleging caste bias against the MD and the contractor. However, the MD wasted no time in ordering that a charge sheet under be issued to him under the service rules of the Undertaking and appointed the General Manager, a non-SC, as enquiry officer with the directions to submit his report within 30 days.  In view of the gravity of charges Mr. Mohan was also placed under suspension, as it was feared that he might influence the witnesses and temper with the official records.

 

During the pendency of enquiry Mr. Mohan appeared more than 18 times before the GM. He was also denied the subsistence allowance, which was due to him, on one pretext or the other. The MD also did not write his Annual Confidential Report for the period he remained under suspension.  In the meanwhile, the GM reported to MD that the issues relating to the disproportionate assets may be sent to State Vigilance Department (police) due to the peculiar nature of allegations and he will conduct the enquiry relating to alleged irregularity of administrative nature only. The vigilance department, on receiving a reference from the MD, immediately swung into action and a police party raided the residential premises of Mr. Mohan and his relatives. An FIR under the Prevention of Corruption Act was registered against him and Mr. Mohan was arrested. He remained behind bars for little over a year and was later bailed out by the High Court. The criminal proceeding lasted for five years and Mr. Mohan was ultimately exonerated from all charges of corruption by the court in the year 2000. The MD decided to go in for appeal, which was also dismissed. Around the same time the GM also submitted his enquiry report on the administrative side and found no irregularity against him.

When Mr. Mohan came to rejoin office after 5 years he went to the chamber of the Administrative Officer, a non-SC with the court’s order. Three more employees of the undertaking were also present in the chamber at that time. The administrative Officer got enraged on Mr. Mohan entering his chamber and insulted and humiliated him in the name of his caste. He also intimidated Mr. Mohan of dire consequences if he, being from low caste, ever dared to reenters his chamber. The AO said he knows how to teach lesson to a scheduled caste like him. He shouted in an abusing language and ordered that the copy of the court’s order be sent to him by post.

Mr. Mohan was humiliated and insulted in full public view by the administrative officer, a member of non-SC community. Inspired by the Act Mr. Mohan, a victim of atrocities as indicated above, immediately approached the police station to get the FIR registered against the accused under SECTION 3(1) (X).  To his shock the SHO dismissed his complaint as trivial and refused to register FIR. Mr. Mohan immediately sent a written complaint to Superintendent of Police, as laid down in the Rules, asking him to get the matter investigated by the DSP and direct the SHO to register the FIR. The SP also did not take any action within the stipulated 30 days. Mr. Mohan also approached the District Magistrate for reimbursement of TA, DA and other incidental charges as specified in the Rules. But the DM did not take any action. When Mr. Mohan DM personally to get his reimbursement case expedited he was informed that the DM office does not have any budget provision of that kind. Mr. Mohan also met the SP and the SHO on three occasions to get the FIR registered against the accused but the authorities failed to take any action.

During these five years of pending criminal and legal proceedings two non-SC officers junior to him got promoted superceding Mr. Mohan’s claim.  The case of Mr. Mohan was not taken up for promotion by the MD on the pretext that he was facing charge sheet under major penalty and also a criminal case was pending against him under the Anti Corruption Act.

Since Mr. Mohan won the case from courts, the MD, left with no alternative, exonerated him and he was also promoted to the post of Manager in the year 2001 when he was left with only 3 years of service. He was also granted all financial benefits from the back date. However, who will compensate him for the ‘atrocity’ he suffered in the hands of non-SCs during this period.

  It may be noticed that in the above ILLUSTRATION various sections of the Act are attracted. For instance section SECTION 3 (1) (viii) of the Act is attracted towards the MD, the GM and the SP vigilance who instituted false, malicious and vexatious legal and criminal proceedings against Mr. Mohan. The SECTION 3 (1) (ix) is attracted towards the private contractor who gave false and frivolous information to MD causing him to take action to the injury and annoyance of Mr. Mohan. The SECTION 3 (1) (x) of the act is attracted towards Administrative officer who humiliated Mr. Mohan in public view in the name of his caste. And finally, SECTION 4 of the Act is attracted towards the SHO, the SP and the DM for willful neglect of duties which, being public servants, they were required to perform.

          In all above circumstances ‘atrocities’ have been committed on a member of SC by members of non-SC and the ‘victim’ (in this case Mr. Mohan) can initiate punitive action against the accused under the Act.


 

How To File a Complaint?

There are TWO routes to make a complaint. One can either FILE AN FIR WITH THE POLICE or DIRECTLY MOVE TO A JUDICIAL COURT.

1) Filling An FIR With The Police

Victim has to file a first Information Report (FIR) against the accused at a police station having jurisdiction. The SC and ST Rules 1995, framed under the Act, tell us about the following steps need to be taken to file an FIR with the police:

STEP 1: Mr. Mohan should lodge First Information Report (FIR) against the MD, the GM and the SP Vigilance with the Police under SECTION 3 (1) (viii) of the Act giving full details and documentary evidence of the ‘atrocity’ by way of false legal proceeding and criminal proceedings (in this case disciplinary proceedings and the FIR under Prevention Of Corruption Act) which was initiated against him and which ultimately turned out to be false. Simultaneously, FIR should also name the private contractor under SECTION 3 (1) (ix) for giving false and frivolous information, which led to the malicious proceedings. Moreover, Mr. Mohan should also give details of humiliation caused to him in the name of his caste by the Administrative officer and lodge FIR against him also under SECTION 3 (1) (x). After lodging FIR against all the accused he must obtain copy of FIR from concerned SHO. The SHO is duty bound under Rule 5 (1) and (2) of the SC and ST Rules made under the Act to record the FIR and give a copy of FIR forthwith, free of cost to the victim (Mr. Mohan). It may also be pointed out that there is a tendency on the part of the police to register FIR under various sections of IPC and other Acts and then add the SC and ST Act also subsequently. This needs to be reversed. The provisions SC and ST Act are more powerful and stringent as compared to other corresponding IPC provisions. The impact of the SC and ST Act need not to be diluted by just mentioning the SC and ST Act also along with IPC provisions in the FIR. Many a cases have failed in the courts as the provisions of the Act were added subsequently as after thought and not in the beginning. Hence, it must be ensured that the police register the FIR under SC and ST Act 1989 only.

STEP 2: In a situation where SHO does not give the copy of the FIR or refuses to lodge FIR, the Rules 5 (3) of SC and ST Rules come to the rescue of Mr. Mohan. Under this Rule the complainant aggrieved by refusal by SHO to take action under the Act, may send his complaint to the Superintendent of Police of concerned district in writing and by registered post with AD, who (the SP) is duty bound to get the matter investigated either himself or by an officer not below the rank of Deputy Superintendent of Police (DSP) within 30 days. It may be noted that the investigation must be completed within 30 days by an officer not below the rank of DSP as per Rule 7. Some cases in the judicial courts fail on this ground that the police did not follow the Rule 7 to get the investigation carried out by a DSP. In M. Niranjan Reddy Vs. State of AP and K. Sukumaran Vs. State of Kerala 3 the High Court has held that Rule 7 was mandatory and the investigation conducted by an Inspector was quashed being contrary to Rule 7. Hence, it must be ensured that an officer not below the rank of a DSP does the investigation. Further, he (the SP) is also duty bound under the section 5 (3) of the Rules to make an order in writing directing the SHO to register the FIR. It is thus crystal clear that after receiving the complaint under the Act an FIR has to be registered by the SHO or the DSP/SP and these authorities cannot refuse to do so because the Act has assigned these specific duties to them.

STEP 3: It may further be clarified that the refusal to register FIR by a police officer tantamount to willfully neglecting his/her duties required to be performed under the Act. As indicated earlier, such neglect is punishable under section 4 of the Act with imprisonment for a term which shall not be less than six months but which may extend to one year. This provision may be brought to the notice of the defaulting public servants verbally and also in writing at the time of asking the SHO to register FIR and to SP while making the complaint against SHO. This needs to be done without fail.

STEP 4: And lastly, in the unfortunate situation of police deciding not to register FIR at all then the only remedy available is to approach the judicial court to get the provisions of the Act invoked.

 

II) Filling Complaint In The Judicial Court

The second route to initiate punitive action against the accused is to file a private complaint with the illaka magistrate (in most cases the Chief Judicial Magistrate of a district or a magistrate who is having jurisdiction over the area where cause of action arises). It should be understood clearly that such complaint is to be filed before a judicial magistrate having jurisdiction under Cr.P.C. and not before the Special Court under the SC and ST Act. (As explained elsewhere Special Courts cannot directly take cognizance of a complaint)

Procedure to make a complaint to a judicial magistrate:

Remember, the complaint is to be filed under Section 190 of Cr.P.C., which empowers a judicial magistrate to take cognizance of any offence a) upon receiving a complaint of facts which constitutes such offence, b) upon a police report of such facts, c) upon information received from any person other than a police officer or upon his own knowledge. Needless to say that your complaint will be filed under subsection (a) above. There are TWO ways in which your complaint may be taken up.

i)  Section 156 (3) of The Cr.P.C. : This is the most commonly used Section of Cr.P.C. Any magistrate empowered under the Code may order an investigation of any cognizable case. There is confusion here about the powers of a magistrate regarding investigation of cognizable offences under this section. There are conflicting judgments of various courts about whether a magistrate on receiving a complaint can order to the police only investigation of a complaint or both investigation and registration of FIR. However, Supreme Court of India in Madhu Bala Vs. Suresh Mohan 4 has finally settled this issue. In this case the High Court had quashed the charges and had held that a magistrate under section 156(3) had no power to direct the registration of a case as he can only direct investigation by the police. However, while setting aside this order of the High Court, the Supreme Court has held that whenever a magistrate directs an investigation on a complaint, the police has to register a cognizable case on that complaint treating the same as FIR and comply with the requirements of law. In yet another case the High Court of West Bengal 5 has held that ‘an investigation by the police can be started only upon registration of the FIR’. Hence, it is crystal clear that a magistrate has unfettered powers to both direct the police to register an FIR and investigate the case on receiving a complaint under Section 156(3). Further, it has been held that where the magistrate sends a complaint to the police directing investigation under this section of the Code and the police submitted a report stating no case was made out still the magistrate can take cognizance and issue process. (Bains (HS) Vs. State (UT), 1980) 6

ii)                Section 200 of the Cr.P.C.: A magistrate may choose to take cognizance on peruse the complaint and if satisfied that there are sufficient grounds for proceeding with the case he can straight away issue process. (such as issue notice, summon, warrants etc.)  (Tula Ram Vs. Kishore Singh7). A magistrate-taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the magistrate. Further, under Section 202 of the Cr.P.C., the magistrate has been authorized to postpone the issue of process and direct investigation into the complaint. (1): Any magistrate, on receipt of a complaint of an offence which he is authorized to take cognizance may, if he thinks fit, postpone the issue of process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding (2) In an inquiry under sub-section (1), the magistrate may, if he thinks fit, take evidence of witnesses on oath, provided that if it appears to the magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. A complaint in this section will be filed under heading ‘criminal complaint against any person’. It must also be ensured that you file ‘affidavit’ in support of your complaint in the beginning itself to avoid delay in recording of preliminary evidence/statement before a magistrate and get the evidence closed. Such an affidavit is to be filed under heading ‘preliminary evidence by way of affidavit’

It is thus clear that a judicial magistrate is to be approached with the complaint to take action under any of the above-mentioned TWO ways depending upon the circumstances or merits of the case.

It may be noted that it is not necessary that complainant should first must approach the police and on refusal of the police to register, file FIR file complaint with the judicial magistrate. In case of VK Malhotra Vs. GR Nagar 8, the Punjab and Haryana High court has held that ‘there is no requirement in Cr.P.C. that the complainant should approach the police before filing the complaint. In the Cr.P.C. there is no bar that complainant cannot approach the judicial courts directly under section 190 of Cr.P.C. by filing a criminal complaint. Moreover, even in SC and ST Rule 5 framed under the Act there is nothing to indicate that lodging of FIR for the offences under the Act is a must. Hence, contrary to the general impression in the minds of SC and ST employees, there is no need to have a solid proof to show to the judicial court that the police was approached, it refused to register the FIR and only then the complaint has been filed with the court. In nutshell, the complainants can approach the courts directly. This legal position has been further clarified in yet another case of Parkash Kaur Vs. Gurbachan Kaur 9by Punjab and Haryana High Court. It has been held that there may be a situation where either a criminal complaint is filed before the judicial magistrate by the complainant OR the police submit a chargesheet before the judicial magistrate. Even otherwise there is no bar to the filing of a criminal complaint under the provisions of the Act before the magistrate. The Rules 5, 6 and 7 of the SC and ST Rules would NOT disentitle the magistrate to entertain a criminal complaint directly and to take cognizance under section 190 of Cr PC. These Rules would apply only to the cases where an FIR is registered in the police station and FIR is investigated by the police. However, where no FIR is registered with the police and the case has not been registered by the police, the provisions of the SC and ST Rules 5, 6 and 7 would have no application.

 Surely enough, by now you may have learned that a complainant is free to choose the route of either filing an FIR with the police or directly file a criminal complaint with the judicial magistrate as illustrated above. However, it would be more desirable to approach Judicial Courts in the first instance only, as they are more sensitive to the cause of providing protection to the underprivileged sections of society. The police generally appear to be having an indifferent attitude toward the problems of SCs and STs.



Facts To Be Proved Before The Court/Police

 

Regrettably, a large number of cases filed under the provisions of SC and ST Act have failed, as the complainants/victims were not able to prove the ‘allegations of atrocities’. A review of a large number of judgments of High Courts and Supreme Court has brought out a number of inadequacies in the FIRs filed with the police or complaints filed before judicial magistrates. These inadequacies are result of ignorance and casual approach on the part of SCs and STs. Following facts need to be established at the time of filing an FIR or making a criminal complaint before a judicial magistrate:

a)    GENERAL

1.   That the complainant is SC or ST: First requirement is to prove that the victim of atrocity is a member of a caste either of SC or ST. This may be proved with the help of a caste certificate issued by the competent authority. It must be ensured to exhibit/produce the copy of the SC or ST certificate and also attach the State list in which a caste falls. For ready reference, the Constitution (Scheduled Caste) Order 1950, which gives “The Schedule” of castes as SC and ST is attached as Annexure- C (for five states only).  In case of Saroj Kumari Vs. State of Haryana 10, the Punjab and Haryana High Court granted anticipatory bail to the accused on the grounds that the complainant has only stated that he is a ‘Harijan by caste’ and the word ‘Harijan’ as such has not been included in the schedule of the constitution, which defines SCs. Hence, it is important to establish with documentary evidence that complainant belongs to SC or ST.

2.  That the accused is non-SC: The person who has committed atrocity belongs to a caste other than SC or ST. If the offence is committed by person (s) belonging to SC or ST they cannot be prosecuted or punished under the Act.

3.  The complaint should relate to the period after the enactment of the Act: The Act cannot be made applicable with retrospective effect. The Act has come into force on 30.1.1990 when it was notified in the official gazette by the Central government. Hence, the events/happenings/complaints, etc; should relate to the period after this date otherwise the case is not likely to stand the scrutiny of law.

4.  The cause of action, when arise and where?: It needs to be ensured that the complaint is filed at the exact place of happening of the event and in the relevant court having jurisdiction. The complaint may also be filed at the registered HQ where the HOD of the organization functions.

5.   The accused had prior knowledge of the caste of the victim: Another ticklish point to be proved is that the alleged offence was committed by the accused solely on the ground that the victim/complainant was a member of SC or ST. The Act is not attracted where it comes to light only subsequent to the commission of offence that the victim belonged to SC or ST. In case of Pishora Singh Vs. State of Punjab 11, the Punjab and Haryana High Court laid down that the this section is attracted only when the accused was aware that the complainant belonged to SC or ST caste at the time of committing the offence. There are many cases where accused have been granted anticipatory bail or FIRs were quashed on the ground that the accused were not aware of the fact that the complainant(s) belonged to SC or ST at the time of committing atrocity. Though it is a naked fact that in almost all cases the accused are aware of the caste of the victims and for that reason only they shamelessly commit the crimes. But whenever a complaint is filed against them their first defense is that they never knew the caste of the victim. At the time of arguments/investigation other factors such as political rivalry, enmity, quarrel, revenge, jealousy, lust or illicit intimacy (in case of rape) etc are cited as possible reasons of committing the crime to avoid the SC and ST Act. The technicalities are given more weightage in granting relief to the accused ignoring the intent of the Act. The remedy lies in overcoming this technicality to the satisfaction of investigation agencies such as police and Courts. This would need good documentation which most of the SCs and STs fail to do.

How to prove that the accused knew the caste of the victim at the time of committing the atrocity? There should be enough material on record, in black and white, to prove that the accused knew the caste of the victim before or at the time of committing the offence. It is not sufficient to say that the accused had ‘knowledge’ that the victim was SC or ST; it is to be proved that the accused committed the crime to belittle the victim by caste and the offence was committed only because the victim belonged to SC or ST. There are number of ways to prove it. In case you have made some complaint in the past to the higher authorities against the accused(s) for caste prejudice it may be cited as evidence along with UPC, if any, to establish that such a complaint was made in the past. If you have personally met the accused on some occasion(s) and told him/her about his/her caste prejudice towards you it should be mentioned with dates and time. This may be done with the help of genuine witnesses who can testify that you actually met the accused to lodge your protest against his/her caste prejudice towards you. If the accused had uttered some objectionable words about your caste in some meeting or otherwise the same should be documented and cited as evidence.

 b)                FOR SECTION 3 (1) (viii):

1.     That the essential ingredients are present in the complaint: That the suit, criminal proceedings, legal proceedings instituted against the member of SC or ST was FALSE (meaning untrue or incorrect), MALICIOUS (meaning intention to hurt or harm someone) and VEXATIOUS (continually troubling or displeasing someone).  It must be ensured that for the case to stand the scrutiny of law all three ingredients are present. Though this is not the requirement of Act and even if one ingredient is attracted it should suffice. Unfortunately, no case appears to have been filed under this section and not much of case law is available relating to this section to say anything with certainty.

2.     Disciplinary proceedings is a legal proceeding: Another task would be to prove that a disciplinary proceeding against an SC or ST employee is a ‘legal proceeding’ under the Act. This may be done in the following ways:

i)       A legal proceeding means a proceeding held under and in accordance with any law made by Parliament or State legislature or any rules made there under. Any disciplinary proceeding, which is taken against any employee under any law, rule or regulation, is therefore a legal proceeding. For instance, the conditions of services of All India Services such as IAS, IPS, Indian Forest Service, are regulated in accordance with the All India Services Act, 1951 (No. 61 of 1951). The Act has been passed by the Parliament. Further, under the Act, All India Services (Discipline and Appeal) Rules, 1969 have been notified. Hence, any disciplinary proceeding against an employee of All India Services is held and conducted by the competent authorities in accordance with these Act and the Rules framed by the Parliament. By this interpretation anything done under an Act of a Parliament or State Legislature is a legal proceeding.

Hence while making an FIR or Complaint before a judicial magistrate a clear reference of the specific Act and Rule of the Central or State government, under which false, malicious and vexatious action was initiated against you must be mentioned. A copy of the relevant Act/Rules may be attached with the FIR /complaint to prove that the disciplinary proceedings was a legal proceeding.

ii) The proceedings of a disciplinary procedings are not, strictly speaking, judicial proceedings, but the rules of natural justice do apply to these proceedings with as much force as they apply to all judicial proceedings. (Joti Parsad Vs. Superintendent of Police 12). In case of State of Maharashtra Vs. Yadav Kohachade 13, the Bombay High Court held that “proceedings” would mean and include an action or prosecution and sometimes as taking a step in an action and, therefore, includes all steps taken in furtherance of prosecution, i.e., arrest, remand, interrogation and investigation.

iii) A disciplinary proceeding is quasi-judicial and a quasi-judicial proceeding is a legal proceeding in nature and hence it is a legal proceeding. The quasi-judicial means judicial in some sense but not in every sense. The concept of quasi-judicial implies that the action is not wholly judicial; it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power. (Nageswar Rao Vs. Andhara Pradesh14).  A quasi-judicial act requires that a decision is to be given not arbitrarily or at the mere discretion of an authority, but according to facts and circumstances of the case, as determined upon an enquiry held by the authority after giving an opportunity to the party to be affected of being heard and whenever necessary, to produce necessary evidence in support of his contentions. (Province of Bombay Vs. Khushaldas Advani15).

iv) A legal proceeding means any proceeding or inquiry in which evidence is or may be given and includes arbitration. A proceeding under section 46 of the Trades Marks Act is a legal proceeding. 16

Based on the above judicial rulings, it may be proved that a false disciplinary proceedings such as suspension, charge sheet, dismissal, termination, explanation etc initiated against an employee is a ‘legal proceeding’ and the provisions of the SC and ST Act are attracted. In case of ‘criminal proceedings’, there may not be any difficulty to prove the same as an FIR under the Prevention of Corruption Act falls under the definition of ‘criminal proceedings’.

3)       Is the sanction for prosecution of accused required?: Another important issue could arise is that whether ‘sanction for prosecution’ from the competent authority would be required or not, as the accused would be public servants. The answer is NO. Firstly, the court is to be satisfied that that the sanction for prosecution will be difficult to get as the accused are posted on higher posts. Secondly, there is nothing in the Section 200 of Cr. P.C. to bar summoning of accused without such sanction by a judicial magistrate. Lastly and most importantly, sanction of Government is required when a public servant violates the law as part of his/her duties or while performing his/her official duties. It is not part of official duty of the accused public servant to commit the offence under the SC and ST Act. Hence, the sanction of prosecution is not required to summon the accused. This view is supported by the case law in Dr Z.U. Ahmed Vs. State of UP 17. It may also be mentioned that the sanction for prosecution is not required if a civil servant is working on deputation with a board, corporation, bureau, council, cooperative society, authority etc. This view is supported by Dhanoa Vs. MC Delhi and Laxman Singh Vs. Naresh  Kumar. 18

It may be noted that no case seems to have been filed under this section so far.

c) FOR SECTION 3 (1) (ix): That the person who made complaint against member of SC or ST did so due to caste prejudice. The intention of the accused has to be proved and mere plea that the accused was against the victim due to caste may not suffice. It may be noted that no case seems to have been filed under this section so far.

d)     FOR SECTION 3 (1) (x): This section seems to have attracted maximum number of cases so far. A large number of cases have been filed under this section and several judgments of the Supreme Court and High Courts are available. Though the discussion here is specific to SECTION 3 (1) (x) only, many a times it would be equally applicable to other sections also. The following inferences are drawn from these judgments:

1. Intention to humiliate or intimidate: These judgments tell us that what needs to be proved is that the person against whom complaint is being made insulted or intimidated the member of SC or ST with the intention to humiliate him in the name of his caste and with reference to his community. The use of expression ‘intention’ makes it abundantly clear that the mensrea is an essential ingredient of the offence and required to be proved beyond doubt. The Allahabad high Court in case of Pappu Singh Vs. State of UP19 has held that simply addressing a person by caste without any intention to insult or intimidate does not constitute offence under the Act.

2. The humiliation was in public view: Further, the act says that the humiliation must be in public view i.e., more than two persons were physically present at the time of incident. Many cases have failed in the courts, as the complainants have not been able to prove that the incident took place ‘in any place within public view’ i.e., any other person was also present at the relevant time. It is also compulsory to prove that the accused was also physically present at the time of incident. It has been held that no offence is made out under the Act in ‘abusing a member of SC or ST on telephone on ground of caste’. No offence is made out if the humiliating words were not uttered in the presence of public. It has been held that mere mention of Section 3 of the Act in the FIR or in the complaint is no ground to refuse anticipatory bail to the accused. In another case it has been held that ‘simply addressing a person by his caste without any intention to insult’ does not constitute an offence. Additionally, derogatory utterances made in generalized terms in a public gathering in the name of a caste would also not attract the Act unless the utterances were directed against an individual member of the SC or ST. Also it is not sufficient to allege that accused used ‘ugly words’ without specifying what were the exact words. The Kerala High Court in case of State Vs. Hassan19 has ruled that using obscene words such as ‘prostitute’ against a lady belonging to SC without reference to the caste name is no offence under the SC and ST Act. In yet another case The Delhi High Court in D.P. Vats Vs. State20 has quashed the FIR on the ground that ‘uttering the words like   ‘I will kill you sweepers and cobblers’, is no offence as the derogatory utterances, even if made in the name of caste, were made in general terms in a public gathering, and were not directed against ‘an individual member’ of the caste/tribe as envisaged by the Act. The court has ordered that the Act would be attracted only if the insult was caused to a ‘person’ and not to a ‘group or public in general’. In case of Gatuba Mohansinh Jadeja21, the Gujrat High Court had ruled that ‘actual abusive words’ used by the accused must be brought on record to sustain the conviction. These aspect needs to be considered at the time of initiating a complaint and full details with ‘exact’ words used by the accused be given.

 e)      FOR SECTION 4: When a public servant but not being a member of a scheduled caste or a scheduled tribe, wilfully neglects his duties required to be performed by him/her under this Act, a case under this section may be initiated against him/her. A public servant, if convicted under this section, shall be punishable with imprisonment for a term which shall not be less than 6 (six) months but which may extend to 1 (one) year. No case seems to have been filed under this section and no case law is available. The procedure to initiate action will be on the same lines as explained earlier in this booklet.

It is thus clear that the complainant has to ensure that prima facie essential ingredients of the Act are not missing otherwise Section 18 of the Act, denying anticipatory bail to the accused would not apply and even the FIR/complaint is liable to be rejected.



What Are Special Courts

 

Under the Act offences can be tried in the Special Courts. Section 14 of the Act says that 'for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the official gazette, specify for each district a Court of Session to be a Special Court to try offences under this Act'.


The above provision of the Act gives the false impression that a case under the Act can be filed in the Special Court directly. THIS IS NOT TRUE. Though various State Governments have notified the Special Courts, these cannot take cognizance of any complaint directly. This point needs to be elaborated further to clear innumerable doubts and misconceptions in this regard. In Gangula Ashok Vs. State of AP22, the Supreme Court of India in the year 2000 has clarified that 'the Special Court can take cognizance of offence only when a case is committed to it by a magistrate in accordance with provisions of Section 193 of Cr.P.C. A charge sheet or complaint cannot straightaway be filed before Special Court. The session courts constituted as Special Courts cannot take cognizance of an offence without the case being committed to it by magistrate unless it is specifically provided differently in the Act. Neither in the Cr.P.C. nor in the Act there is any provision whatsoever, not even by implication, that the Special Court can take cognizance of the offences as a original jurisdiction without the case being committed to it by magistrate.' This practically means that NO case can be filed directly before a Special Court as many of SCs and STs may have thought so far. Actually, before the case reaches the Special Courts it has to pass through the route established in the Cr.P.C. The police have to file a charge sheet or challan based on FIR and investigation before the judicial magistrate and not before the Special Court. Similarly, in case of a private complaint with the judicial magistrate, if the magistrate is satisfied that a case under the Act is made out he will commit it to Special Court for TRIAL. Hence, at present the legal position is that the Special Courts cannot be approached directly.


The Supreme Court also noted that there are Special Courts such as under Narcotics Drugs and Psychotropic Substances Act (NDPS), which have been specially empowered to take cognizance of the offences without the case being committed to it for trial. It is significant to note that no such similar provision exists in the SC and ST Act. In the case of the State of AP Vs.Shekar Nair23 also, the High court has observed that to avoid endless controversies because of the absence of the specific provision in the Act empowering the Special Courts to take cognizance of offences under the Act directly, the Parliament should step in and introduce necessary provisions with retrospective effect, if need be. The Ministry of Social Justice and Empowerment, Government of India, is also seized of the matter and has asked for the opinion of various State governments in this regard. This aspect also needs urgent attention of National Commission of SC and ST so that this anomaly is set right forthwith. Needless to say that for speedy trial such a provision should be specifically included in the SC and ST Act otherwise the Act is not achieving the objectives for which it was specially enacted.

How To Engage Senior Advocates

 
There are two occasions when you will need assistant of legal persons and would also require financial assistance to defend your case. It is hearting to note that the Act and the Rules framed there under provide for legal/financial help from the first day you take up your case against the accused. Unfortunately, as in case of other provisions of the Act, there is tremendous confusion about this provision also, as to when and how, legal /financial assistance will be available to a victim to defend himself/herself. However, no such example has come to our notice where a victim has asked for assistance under these provisions or the DMs have provided any help. Let us try to clear some of the doubts.

Legal/financial assistance to fight case in the Special Courts: The Act provides that the special public prosecutors or senior advocates shall defend the offences under the Act in the Special Courts. The section 15 of the Act states that ‘for every Special Court, the State Government shall, by notification in the Official Gazette, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court’. In most of the States the public prosecutors in each Sessions division have been notified as such. Though the Government appoints special public prosecutors/senior advocates to defend the victim of atrocity, it is not binding on the victim to get the services of these advocates only. The victim of atrocity can also demand for a senior advocate of his/her choice who shall be paid by the district administration. Clause 4 (5) of the Rules states that ‘Notwithstanding anything contained in sub-rule (1) the District Magistrate or the Sub-Divisional Magistrate may, if deem necessary or if so desired by the victim of atrocity, engage an eminent Senior Advocate for conducting cases in the Special Courts on such payment of fees as he may consider appropriate. The clause (6) of the Rules provides that the ‘payment of fee to the Special Public Prosecutor shall be fixed on a scale higher than the other panel advocates in the State. Hence, in case a TRIAL is going on in a Special Court this provision comes to your help.

Legal/financial assistance during investigation: The Section 21 of the Act provides adequate facilities, including legal aid, to the persons subjected to atrocities to enables them to avail themselves of justice. This includes the traveling and maintenance expenses to the victim, witnesses during INVESTIGATION and TRIAL. Additionally, under section 11 of the Rules, the victim is entitled to traveling allowance, daily allowance, maintenance expenses, diet expenses and reimbursement of transport facilities by the DM immediately or not later than three days of making a complaint. Such help will be available not only to the victim but also to his dependents/attendant and witnesses for the days they visit the investigating officer or in-charge police station or hospital authorities or Superintendent of Police, Deputy Superintendent of Police or District Magistrate or any other officer concerned or the Special Court. Needless to say that the victim has to keep an account of such expenses, bus/rail tickets etc and seek reimbursement from the District Magistrate.

It may be noted that the District Magistrates (DMs) are providing some legal assistance at the time of TRIAL of a case in the Special Courts. As far as providing legal and other assistance at the time of INVESIGATIPON is concerned, no victim seems to have made a demand to DM so far. The correct interpretation of Section 21 of the Act would be to avail /provide financial/legal assistance to victims from the very beginning. Though the intention of the Act is clear, no case law is presently available on this point. However, thumb rule would be to simultaneously apply to the concerned DM for compensation/legal aid on the first day when a complaint/FIR is being filed.

Can Accused Get Anticipatory Bail

 

NO. This is probably the only law of the land where there is NO provision for the accused to seek/get anticipatory bail. The Section 438 of Cr.P.C. empowering the courts to grant anticipatory bail has been barred under the Act. The Section 18 of the Act reads as: ‘Nothing in section 438 of the code  (Cr.P.C.) shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act’. This practically means that if a case under Section 3 of the Act is registered against the accused or an accused is summoned by the court in a private complaint, no court is empowered to grant him/her anticipatory bail under any circumstances.

It may further be pointed out that the above provision of the Act has been challenged to be ultra virus and unconstitutional in the various High Courts of India at different points of time with conflicting judgements. However, the Hon. Supreme Court of India has finally settled the issue by upholding the validity of Section 18 of the Act in case of State of MP Vs. Ram Krishan Balothia 24 in 1995. In this case the Supreme Courts has held that “the Act has to be viewed in the context of prevailing social conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. When the SCs and STs assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. These offences are committed to humiliate and subjugate the members of SCs and STs and constitute a separate class and cannot be compared with offences under IPC. Hence, says Supreme Court, denial of anticipatory bail in these circumstances cannot be considered as unreasonable or violative of Article 14 or Article 21 of Constitution of India”.

Almost five years after the judgement of Supreme Court, the Rajasthan High Court in Virender Singh Vs. State of Rajasthan 25 though admitting that in view of the final decision of the Supreme Court, where the Apex Court has upheld in no uncertain terms, that the accused is not entitled to anticipatory bail in view of the bar under section 18 of the Act, has ruled that bail application can be considered if the FIR or the Complaint makes out no offence under the Act. The application for anticipatory bail can be entertained only on the ground of inapplicability of the SC and ST Act and not beyond that. The judgment further states that if from the FIR it is gathered that an offence under the Act is even alleged, anticipatory bail will not be made available to the accused. It has been further held that the courts will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint by calling the case diary, chargesheet or any other material except the FIR. This means that at least a prima facie case should be made out from the simple reading of the FIR or the complaint to deny the benefit of anticipatory bail to the accused.

However, despite clear guidelines on non-availability of anticipatory bail to the accused by the Apex Court, it is unfortunate that the offenders are seeking and getting the benefit of anticipatory bail despite having no such provisions under the Act. It appears that the victims have not been able to properly put forward entire facts and legal position before the courts to make them appreciate the same. The remedy lies in educating the SCs and STs about the above decision of the Supreme Court of India where the Apex Court has held in no uncertain terms that anticipatory bail under the Act is barred.

Can The FIR Be Quashed By The Court

 
Once the accused is denied bail he/she can approach the High Court for quashing of FIR alleging malafide or abuse of process of law. Under section 482 of Cr.P.C. the High Courts have the inherent powers to grant relief to the accused to prevent abuse of process of any court. Most of the times the accused approach the High courts to get the FIR quashed under this section. However, it has been held by the Punjab and Haryana High Court26that inherent powers cannot be used to defeat the specific provisions namely Section 18 of the Act. The court held that since there is specific bar under the Act, Section 438 of Cr.P.C. is not available to the accused. In yet another case 27 it has been decided that ‘the rule of practice is that inherent powers should be exercised in exceptional cases’. These cases have also concluded that ‘the High Court is not justified in embarking upon as to probability, reliability or genuineness of allegations made therein. An FIR or a complaint must be quashed only if the allegations made are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused’. ‘The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. Moreover, in Ramniwas Vs. State28, it has been held that the bail cannot be granted in exercise of inherent powers because there is a specific provision for the same in the Cr.P.C’.

Does Victim Get Financial Help

 

YES. The victim is also entitled to compensation/relief under the Act. Following norms for relief amount have been made under Rule 12(4):

ATROCITY
RELIEF AMOUNT
Instituting false, malicious or vexatious legal proceedings [SECTION 3 (1) (viii)]

Rs. 25,000 or reimbursement of actual legal expenses and damages whichever is less after conclusion of the trial of the accused.

Giving false and frivolous information
[SECTION 3 (1) (ix)]

Rs. 25,000 or reimbursement of actual legal expenses and damages whichever is less after conclusion of the trial of the accused.

Insult, intimidation and humiliation

[SECTION 3 (1) (x)]

Up to Rs. 25,000 to each victim depending upon the nature of the offense. Payment of 25percent when charge sheet is sent to the court and the rest on conviction.

It may be noticed that the relief of Rs. 25,000 under sections viii and ix shall be available to the victim AFTER THE CONCLUSION OF THE TRIAL OF THE ACCUSED. This relief is on two counts i.e., legal expenses and the damages. It is important to note that whether a victim wins or loses the trial in the Special Court, he/she is entitled to the relief under the Act. In case of section 3 (1) (x) 25 percent payment is entitled when charge sheet is sent to the court and the rest on conviction. Moreover, the relief would be available to him separately and independently for all sections. The District Magistrate on an application made by the victim in this regard will provide the relief/financial help to him.

However, there are unfortunate incidents where the District Administration refused to provide relief/compensation/damages etc. to the victims. For instance, in the case of Harjinder Kaur Vs. State of Punjab29 a poor rape and abduction girl, a daughter of a labourer had to approached the Punjab and Haryana High Court to get direction to District Magistrate of Jallandhar to give her legitimate relief under Rule 11 and 12(4). The District Magistrate took the plea that there was no budget provision made available by the Government in that year. The poor victim meanwhile also approached the National Commission for SCs and STs. Even after the directions of the Court the poor victim had to file a contempt petition in the High Court. The home department then advised the DM to make payment ‘if bound under the law’. Left with no choice the DM ultimately made payment of Rs. 57,581 from District. Red Cross Society to be recouped from the government subsequently.




Conclusion

 

It may be seen that harassed SC and ST employees can take advantage of the provisions explained above to protect themselves from the atrocities. This can be done only if they have a clear understanding of not only the Act but also its interpretation by various courts.

 It is unfortunate that NO case seems to have been instituted under these sections by the employees in the country.

 We sincerely hope that this effort wi