Allahabad High Court
Ramesh Chand Gupta And Anr vs State Of U.P. And Another on 24 September, 2015
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 36
AFR
Case :- APPLICATION U/S 482 No. - 25797 of 2014
Applicant :- Ramesh Chand Gupta And Anr
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Shashi Bhushan Kunwar
Counsel for Opposite Party :- Govt. Advocate,Rayaz Hasan
Hon'ble Pramod Kumar Srivastava,J.
Heard learned counsel for the applicants and opposite party no. 2 and learned AGA for the State.
This application under section 482 Cr.P.C. was preferred for quashing the charge sheet of case No. 438 of 2014, State v. Ramesh Chand Gupta and another under section under section 323, 504 IPC and section 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC/ST Act), police station Bansdeeh, district Ballia pending in court of ACJM, Ist, Ballia.
Prosecution in brief was that the applicants-accused were raising some constructions in their house in form of projection (hhajja) which was tilting towards the court yard of the informant's courtyard, then informant's wife and son objected. This led to oral altercation. Enraged by it accused-applicants have trespassed in informan's house and caused physical injuries to informant's wife and son. After returning home informant came to know about these facts and lodged FIR on the basis of which case Crime No. 765/2013 under section 147, 452, 323, 504 IPC and Section 3(1)(x) of SC/ST Act was registered in which after investigation charge sheet for offence under section 323, 504 IPC and Section 310 SC/ST Act was submitted in court, which is under change in the present writ petition.
The provision of section 3(i)(x) of SC/ST Act are as under:
3. Punishment for offences of atrocities.
(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.
In Swaran Singh v. State, (2008) 8 SCC 435 Apex Court had held:
"24. In our opinion, calling a member of the Scheduled Caste "chamar" with intent to insult or humiliate him in a place within public view is certainly an offence under Section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word "chamar" will of course depend on the context in which it was used."
In Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 Apex Court had held:
"9. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
In Gorige Pentaiah v. State of A.P., (2008) 12 SCC 531 the Supreme Court had held that:
"6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27-5-2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."
From the perusal of record and even FIR the admitted prosecution case is that that the altercation had started when applicant- accused started constructing projection (chajja) in their house which was likely to disturb privacy of the house of informant. When informant's wife objected then alleged brawl arose after oral altercation. The entire incident happened inside the house of informant.
Admitted case of prosecution is that offence must was committed against informant's family not on the ground that such person is a member of Scheduled Castes and Scheduled Tribes but because of the dispute arisen due to alleged wrong construction being raised by applicant-accused. It is also admitted prosecution case that all the incident had occurred within the house of informant (/present O.P. No.-2) and not 'in a place within public view'. Therefore, I am of the considered view that accused-appellant should not be prosecuted unnecessarily for offence punishable under Section 3(1)(x) of SC/ST Act. The alleged insult was 'intentional' for refuting the objection raised by informant's family member against construction of applicant, and not for any other reason. The mere fact that the victim happened to be person belonging to a Scheduled Caste does not attract the provisions of the Act
The contention of the learned counsel for the applicants-accused was that applicants are also members of scheduled caste community and without considering this fact the case for offence under SC/ST Act was registered against them. This fact had not been considered right now as it relates to finding of fact.
But it is apparent from perusal of record that right from beginning from registration of case and till submission of charge-sheet the investigation had been erroneous on several important points relating to SC/ST Act. Without verifying as to whether the applicant belongs to scheduled caste or not, and whether alleged act was committed in public place or not the case under SC/ST Act was registered. For the reasons mentioned above, if prosecution version is accepted to be true even then no case for offence under section 3(1)(x) of SC/ST Act is made out. Therefore the prosecution of applicants for said offence is abuse of process of court which should be prevented by exercise of inherent power of this court.
Therefore, this application under section 482 Cr.P.C. is partially allowed and offence of section 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 mentioned in the charge sheet is quashed. But for remaining offences mentioned in the charge-sheet trial will proceed in accordance with the provisions of law and procedure.
Order Date :- 24.9.2015
SKS
