Asha Arora, J. - (1.) By the instant application under section 482 of the Code of Criminal Procedure the petitioners have approached this Court for quashing of the proceeding of Special GR.No. 04/2017 (Reg. No.) 05/2017 arising out of Naxalbari P.S. Case No. 66/17 dated 24/3/2017 under section 4(1)(f)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act 2015, the charge-sheet being No. 108/17 dated 18/8/2017 submitted under Section 3(1)(f)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred to as "The Act") pending before the learned Judge Special Court under SC/ST (POA) Act Darjeeling.
(2.) The facts in brief leading to the present application may be summarized as follows: On 24/3/2017 at about 18.35 hours the complainant/opposite party no. 2 herein named Laban Xalxo of Dhandhipri Busty, District Darjeeling lodged a written complaint at Naxalbari P.S. contending that his mother deceased Lakshishwari Xalxo was the recorded owner of scheduled land being plot No. 102, 104,105, 106,107,108,111, 115, 122,127, 128, 139, 194 and 198, khatian No. 9, mouza Mirjangla J.L. No. 10within P.S. Naxalbari. After the demise of his mother, the complainant along with his brother and sister inherited the said tribal land as her legal heirs. It is further alleged that since a few months Chandra Bahadur Chettri (Mithe) and 9/10 others of the same locality are trying to encroach into the aforesaid plots of tribal land and construct new buildings unauthorizedly. The complainant lodged a complaint at Naxalbari P.S. on 2/1/2017 which was diarised as GDE No. 5/17 dated 2/1/2017 pursuant to which the police visited the spot and the accused persons stopped their illegal activities but they have again started the same. When the complainant asked the accused persons to stop the illegal activities, they threatened him with dire consequences and stated that he being a tribal has no power or strength so he should not do anything to save the land otherwise he will be killed and no one will come to help a tribal. On the basis of the aforesaid written complaint the above mentioned proceeding was initiated. The case was endorsed for investigation to the Deputy Superintendent of Police (Rural) Darjeeling which culminated in the submission of the charge-sheet under section 3(1)(f)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the petitioners herein.
(3.) Learned counsel for the petitioners strenuously argued that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 came into force on 30/1/1990 but the petitioners have been in possession of the land in question for more than forty five years and are duly protected under Section 14E of the West Bengal Land Reforms Act, 1955. Since statutes are ordinarily prospective in operation the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act has no application against the petitioners as there is no indication in the aforesaid Act that it is retrospective in operation. To buttress such submission reference has been made to the case of Panchanan Pal versus State of West Bengal, 1976 1 ILR(Cal) 435. It is further contended that the dispute if any is civil in nature for which the appropriate civil remedy should have been availed instead of launching criminal prosecution which is not justified. Learned counsel sought to impress that the ingredients of the offence under Section 3(1)(r) of the Act are not disclosed in the FIR.since no one has been cited as a witness to the alleged incident of insult or intimidation so the incident in question does not fall within the meaning of "public view" which is the sine qua non for the aforesaid offence. Placing reliance on the case of Gorige Pentaiah versus State of Andhra Pradesh & others, 2009 1 SCC(Cri) 446, learned counsel for the petitioners pointed out that nowhere in the written complaint it is mentioned that the accused persons were not the members of the Scheduled caste or Scheduled tribe and the complainant was intentionally insulted or intimidated with intent to humiliate in a place within public view. It is contended that according to the Act, the complainant ought to have alleged in the FIR.that the accused persons were not the members of the Scheduled caste or Scheduled tribe and the complainant was intentionally insulted or intimidated by the accused persons with intent to humiliate in a place within public view. It is argued that when the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the petitioners to face the rigmarole of criminal trial would be totally unjustified leading to abuse of process of law. It is further canvassed that in view of Rule 7 sub-rule (2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules 1995, the investigation should be completed and the charge-sheet should be filed within a period of sixty days but in the present case the FIR.was lodged on 24/3/2017 and the charge-sheet dated 18/8/2017 was filed on 21/10/2017. Learned counsel argued that the proceeding should be quashed since the charge-sheet was submitted beyond the statutory period. Relying on the case of State of Madhya Pradesh versus Chunnilal alias Chunni Singh, 2010 1 SCC(Cri) 683 and State of Punjab versus Hardial Singh and Others, 2010 2 SCC(Cri) 288, learned counsel for the petitioners sought to impress that the investigation was illegal and invalid since the investigating officer was not appointed in terms of Rule 7 Sub rule (1) nor could the investigation be completed within the stipulated period as provided in Sub rule (2) of Rule 7.;