Allahabad High Court
Gurbaksh Singh And 2 Others vs State Of U.P. & Another on 27 April, 2015
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 41
Case :- APPLICATION U/S 482 No. - 7637 of 2015
Applicant :- Gurbaksh Singh And 2 Others
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Raj Kumar Khanna,Amber Khanna
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Manoj Misra,J.
Heard Sri Raj Kumar Khanna for the applicants; Sri Vinay Kumar Pathak for the opposite party no.2; the learned A.G.A. for the State; and perused the record.
As the parties have exchanged their affidavits, with the consent of the learned counsel for the parties, this application is being finally disposed of, at this stage.
The instant application has been filed for quashing of the proceeding of Case No.805 of 2015 pending in the Court of Chief Judicial Magistrate, Saharanpur, under Section 504, 506 IPC and Section 3(1)(x) of S.C./S.T. Act., arising out of Case Crime No.298 of 2014, P.S. Kotwali Nagar, District Saharanpur. The applicants have also prayed for quashing of the charge sheet dated 31.10.2014 submitted against the applicants in the said case.
Although, the applicants have prayed for quashing of the entire proceeding but the arguments of Sri Raj Kumar Khanna, learned counsel for the applicants, were confined to assail the charge of an offence punishable under Section 3(1)(x) of S.C./S.T. Act laid in the charge sheet by submitting that from the allegations in the first information report and the material collected during the course of investigation no offence punishable under section 3(1)(x) of the S.C./ S.T. Act is made out and, therefore, the cognizance of the said offence taken by the court below on the basis of the charge sheet, is not legally justified and to that extent the charge sheet as well as the cognizance order be set aside.
He has invited attention of the Court to the allegations made in the first information report, which is on record as Annexure No.1 to the affidavit, where it is alleged that the accused had threatened and abused the informant as also hurled caste related abuses without specifically disclosing his own caste or as to what were those caste related abuses and whether those caste related abuses were hurled with a view to humiliate the informant/victim in public view. It has been submitted that even in the statements of the informant and the witnesses recorded under Section 161 CrPC it has not been specifically stated as to what were those caste related abuses allegedly hurled by the accused on the informant as also whether the same were hurled on the informant with a view to humiliate him in public view. He has placed reliance on decisions of the Apex Court in the case of Gorige Pentaiah Vs. Sate of Andhra Pradesh and others (2008) 12 SCC 531 and Swaran Singh vs. State (2008) 8 SCC 435. In Gorige Pentaiah's case (supra) the Apex Court had quashed the complaint and had observed that for an offence punishable under Section 3(1)(x) S.C./S.T. Act to be made out the basic ingredients are that the complainant must allege that the accused was not a member of the Scheduled Caste or a Scheduled Tribe and that he intentionally insulted or intimidated the complainant with intent to humiliate him in a place within public view. It has been submitted that since the complaint is completely bereft of the necessary ingredients which are necessary to make out a case punishable under Section 3(1)(x) S.C./S.T. Act, the charge of an offence punishable under S.C./S.T. Act is not legally justified and to that extent the cognizance taken by the court below is liable to be set aside.
Per Contra, the learned counsel for the opposite party no.2 as well as the learned AGA submitted that the accused were well aware of the caste of the informant and that they are also facing separate trials relating to similar offences, therefore, it would be a matter of trial whether such caste related abuses were hurled with intent to humiliate the informant in public view or not. However, they could not demonstrate from the material on record as to what caste related abuses were hurled on the informant and by whom, as there were three accused, as also whether those abuses were hurled in public view with an intent to humiliate the informant.
Having considered the submissions of the learned counsel for the parties as also having perused the record, this Court finds that mere allegation in the first information report that caste related abuses were hurled without specifically disclosing as to what caste related abuses were hurled and by whom, as there were three accused, as also without disclosing whether they were hurled with a view to humiliate a member of scheduled caste in public view, the offence punishable under Section 3(1)(x) of S.C./S.T. Act cannot be said to have been made out, at this stage, so as to enable the court to take cognizance of the said offence and proceed further. So far as the other offences punishable under Sections 504 and 506 IPC are concerned they are made out from the allegations made in the first information report and the material collected during investigation.
In view of the above, this application is partly allowed. The cognizance order of the court below taking cognizance of the offence punishable under Section 3(1)(x) of S.C./S.T. Act is set aside. The case will proceed for the offences punishable under Sections 504 and 506 IPC. It is, however, made clear that if, subsequently, during the course of trial, evidence comes from which an offence punishable under Section 3(1)(x) of S.C./S.T. Act is made out, the court would be free to take cognizance and proceed further in accordance with law.
At this stage, learned counsel for the applicants submits that since non bailable warrants have been issued against the applicants, some protection may be given to the applicants to appear before the court concerned and apply for bail. It is, accordingly, provided that for a period of four weeks, non bailable warrants as well as coercive processes issued against the applicants shall remain in abeyance provided they surrender before the court concerned and apply for bail in connection with the aforementioned offences, within the aforesaid period. If they do so, within the period provided herein above, their prayer for bail shall be considered in accordance with law laid down by this Court in the case of Amrawati and another Vs. State of U.P.: 2004(57) ALR 290, decided by a Full Bench of this Court, which has been approved by the Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P.: 2009(3) ADJ 322 (SC). It is made clear that if the applicants do not surrender before the court within the period specified herein above, the court will be free to take coercive steps against them.
Order Date :- 27.4.2015
AKShukla/-
