HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Criminal Revision No. 3439 of 2011 Suhail Fasih ........ Revisionist Versus State of U.P. & Another ........ Opposite Parties Hon'ble S.C. Agarwal, J.
This revision under section 397/401 Cr.P.C. is directed against order dated 5.8.2011 passed by Special Judge, S.C./S.T. Act, Farrukhabad in Special Sessions Trial No.44 of 2006 (State Vs. Suhail Fasih) arising out of crime no.578 of 2004 under section 354 IPC and section 3 (1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act'), P.S. Kotwali Fatehgarh, District Farrukhabad, whereby the application 8-B under section 227 Cr.P.C. claiming discharge has been rejected.
On 6.7.2004 at 6:30 p.m., a written report was submitted by the complainant Smt. Munni Devi (opposite party no.2) wife of Ram Chandra at P.S. Kotwali Fatehgarh, Farrukhabad against the revisionist stating therein that she used to work as a part time maid servant at the house of accused Suhail Fasih, District Informatics Officer situated at Officers' Colony, Fatehgarh on monthly wages of Rs.325/- per month. She was not paid any remuneration for the past five months. On 11.6.2004 at 7:00 a.m., when the complainant demanded her wages from the accused, he abused her by calling her 'Sali Dhobin' and forcibly took her inside the room and molested her by touching her breast. The complainant raised alarm. Many persons including her husband reached there.
After investigation, the police submitted final report. A protest petition was filed by the complainant. Learned Chief Judicial Magistrate, Fatehgarh vide order dated 14.12.2005 took cognizance under section 190 (1) (b) Cr.P.C. and summoned the revisionist to face trial under section 354 IPC and section 3 (1) (x) of the Act. The summoning order was challenged by the revisionist by means of an Application under section 482 Cr.P.C. No. - 2617 of 2006, which was dismissed by order dated 8.3.2006. The said order was challenged before the Apex Court by means of Special Leave to Appeal (Criminal) No.1838 of 2006, whereupon the following order was passed by the Apex Court on 1.5.2006 :
"Heard learned counsel for the petitioner.
After some argument, learned counsel is permitted to withdraw this petition. We may, however, observe that if at the time of framing of charges, a petition for discharge is filed, the same shall be considered on its own merit without being prejudice by any observations made either by the High Court or by the trial court in the impugned orders. The special leave petition is, thus, disposed of."
In pursuance of the order passed by the Apex Court, a detailed application for discharge under section 227 Cr.P.C. was filed by the revisionist before Special Judge, S.C./S.T. Act, which has been rejected by the impugned order. Hence, this revision.
Heard Sri I.K. Chaturvedi, learned counsel for the revisionist and learned A.G.A. for the State at length and perused the material available on record.
Notice sent to the complainant through C.J.M., Farrukhabad has been personally served on the complainant, but she has chosen not to put in appearance nor any counter affidavit was filed on her behalf.
It is submitted by Sri Chaturvedi that at the relevant time, the revisionist was posted as District Informatics Officer at Fatehgarh and was alloted Official Residence No. D-33, Officers' Colony, Fatehgarh. The said residence was on the first floor of the building. The complainant used to work at the house of the accused as a part time maid servant. On 15.5.2004, Km. Anju, daughter of the complainant, committed theft of gold bangle and diamond ring of the wife of the accused, in respect of which, a written report was given to Superintendent of Police, Farrukhabad on 2.6.2004. When the F.I.R. was not registered, a complaint was made to District Magistrate, Farrukhabad and on his orders, the F.I.R. was lodged on 22.6.2004 against Km. Anju. Sri Chaturvedi contends that as a counter blast, this case has been concocted by the complainant against the accused, who is a Class I Officer of the Central Government and was residing with his wife in the official residence provided to him. The contention is that after theft of jewelry, the services of the complainant were terminated by the accused and there was no question of complainant coming to the residence of the accused to demand her wages. It was further submitted that the husband of the complainant claimed that he reached the house of the accused on hearing the alarm raised by his wife and there was some altercation between the accused and the complainant. The attention of the Court was also drawn towards the statement of Ram Chandra, husband of the complainant, wherein he stated that the allegation of molestation made by his wife was false and only an altercation took place on account of demand of wages.
Sri Chaturvedi further contends that the incident is alleged to have taken place at the first floor of the house in a Government Colony provided to the revisionist, which was not a public place and the incident did not take place in public view and, therefore, provisions of section 3 (1) (x) of the Act are not attracted.
It was further submitted that the trial court has ignored these basic facts and has rejected the application for discharge in a mechanical manner and the prosecution is malafide, frivolous, vexatious and was initiated by the complainant simply to wreak vengeance on the accused on account of F.I.R. relating to theft earlier lodged by the accused against the daughter of the complainant.
Learned A.G.A. supported the impugned order and submitted that the truth of falsity of the allegations can be judged after evidence of the witnesses and the revisionist would get an opportunity to cross-examine the witnesses and at this stage, the court should not enter into the merits of the case.
In Satish Mehra Vs. Delhi Administration and Another, 1996 Supreme Court Cases (Cri) 1104, the Apex Court has held as under :
14. The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even material which the accused may produce at the stage contemplated in Section 227 of the Code.
15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.
In the instant case, FIR in respect of the theft in the house of the revisionist on 15.5.2004 was lodged against daughter of the complainant on 22.6.2004. A copy of the FIR is annexure 5 to the affidavit filed in support of revision. The disputed incident is alleged to have taken place on 11.6.2004, but surprisingly, the FIR was lodged by the complainant on 6.7.2004. The contention of learned counsel for the revisionist is that the FIR was lodged as a counter blast to the FIR lodged by the revisionist against daughter of the complainant.
The complainant in her statement recorded under section 161 Cr.P.C. stated that on 11.6.2004, she went to the house of the revisionist to demand her wages. The revisionist became annoyed and told her 'Sali Dhobin how do you dare to demand money from me. Today I will pay you'. The revisionist took her by hand to the inside room and tried to molest her and touched her breast. When she raised alarm, her husband reached there and rescued her.
As far as the allegation of molestation is concerned, the statement of the complainant is falsified by the statement of her husband Ram Chandra, who specifically stated in his statement under section 161 Cr.P.C. that on 11.6.2004, when his wife demanded her wages from the revisionist, he became annoyed and started shouting loudly. He also reached upstairs and he heard the accused saying 'bloody dhobin daily comes to demand money'. He has further admitted that his wife was only insulted by the accused, but his wife exaggerated in her statement before the police and added the allegation of molestation.
The allegation of molestation becomes highly doubtful from the statement of Ram Chandra, the husband of the complainant. Two other witnesses Sudhir Kumar and Deena Nath, though filed affidavits subsequently in favour of the complainant, did not support the complainant's case in their statements recorded under section 161 Cr.P.C. They did not hand out any eyewitness account, but stated that they came to know about the incident of altercation between the revisionist and the complainant later on.
The revisionist is a married man. There is no allegation either in the statement of the complainant or her husband that his wife was not present in the house at the time of incident. Since the revisionist had already given a complaint against the daughter of the complainant to the police alleging theft by her, allegation of molestation was made by the complainant against the revisionist only as a counter blast to wreak vengeance on him. Therefore, in my considered view, no sufficient material exists for framing of the charge under section 354 IPC.
As regards the offence under section 3 (1) (x) of the Act is concerned, the same is also not made out.
Section 3 (1) (x) of the Act provides as under :
"3 (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :-
.....................................
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."
......................................
shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine".
There is nothing on record to show that the revisionist insulted or intimidated the complainant with intent to humiliate her in a place within public view.
The words 'in any place within public view' are most important. Even if the facts alleged by the complainant are admitted, the incident took place on the first floor of the house situated in the Government Quarter alloted to the revisionist and the said quarter situated in the first floor of the house cannot be said to be a place within public view. Even if it is assumed that the revisionist called the complainant 'Sali Dhobin' the said words were not uttered by him in public view and, therefore, the provisions of section 3 (1) (x) of the Act are not attracted.
In taking this view, I find support from a decision of the Apex Court in Gorige Pentaiah Vs. State of Andhra Pradesh and others 2009 (3) Criminal Court Cases 088 (S.C.).
As far as offence under section 354 IPC is concerned, the statement of the complainant stands belied by the statement of her husband. Since there were serious allegations against the daughter of the complainant regarding theft of jewelry of the wife of the revisionist, there was no occasion for the complainant to go to the house of the revisionist to demand her wages. It is obvious that she went to the house of the revisionist simply to create a ground to concoct a counter blast case. None of the independent witnesses has supported the complainant in this regard. Even her husband stated that there was only an altercation between his wife and the accused on account of demand of wages and nothing else took place. In these circumstances, no sufficient ground for framing the charge under section 354 IPC is made out.
As far as the offence under section 3 (1) (x) of the Act is concerned, the question of alleged humiliation or calling the complainant 'Sali Dhobin' took place inside the house of the revisionist situated on the first floor of the building, which was not a place within public view and, therefore, the provisions of section 3 (1) (x) of the Act are not attracted.
Learned Addl. Sessions Judge has ignored these aspects of the case. He did not consider the statements of the complainant as well as her husband recorded in the case diary and also did not consider the provisions of the Act in proper perspective.
In 2009 (3) Criminal Court Cases 400 (S.C.), M/s. Eicher Tractor Ltd. & others Vs. Harihar Singh & another, the Apex Court has held that "where a criminal proceeding is manifestly attended with mala fides and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, continuance of such proceedings will be nothing, but an abuse of process of law and such proceedings are liable to be quashed".
In view of the above discussion, I have come to the conclusion that no sufficient material exists against the revisionist to frame charge under section 354 IPC and section 3 (1) (x) of the Act. Even if charge is framed, there is no hope for any conviction and trial would simply be a waste of time of the Court and harassment of the accused. In these circumstances, the impugned order rejecting the application for discharge cannot be sustained and is liable to be set-aside and the revisionist deserves to be discharged.
Revision is allowed.
Impugned order dated 5.8.2011 is set-aside.
The revisionist Suhail Fasih is discharged for the offence under section 354 IPC and 3 (1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Revisionist is on bail. He need not surrender to his bail. His bail bonds are cancelled and sureties are discharged.
Dtd./ - 11th November, 2011.
ss