Satendra Kumar & Others vs State Of U.P. & Another
2016 Latest Caselaw 4628 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- APPLICATION U/S 482 No. - 3084 of 2003
 
Applicant :- Satendra Kumar & Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- I.K. Chaturvedi
 
Counsel for Opposite Party :- Govt.Advocate,B. Ram
 

 
Hon'ble Harsh Kumar,J.

Heard Sri I.K. Chaturvedi, learned counsel for the applicants and learned AGA for the State.

The application u/s 482 Cr.P.C. has been moved for quashing the criminal proceedings in criminal case no.378 of 2003 (State Vs. Satendra and others), under sections 323, 504, 506 IPC and Section 3(1)(x) of S.C./S.T. Act, P.S. Jani, District Meerut pending before Special Chief Judicial Magistrate, Meerut.

Learned counsel for the applicants contended that the opposite party no.2 firstly lodged N.C.R. on 19.11.2002 with false allegations against applicants and on 5.12.2002 moved an application under sections 155 and 156 (3) Cr.P.C. for addition of section 2/3 S.C./S.T. Act with the allegations that despite the fact that the applicants called him with caste name and abused by naming mother-sister and beaten him, but despite making complaint with Senior Superintendent of Police and Deputy Inspector General of Police, Meerut Range through application for addition of offence under section 2/3 S.C./S.T. Act no action was taken; that on above application of opposite party no.2, the Magistrate concerned directed to register the case and the police of police station concerned converted the N.C.R. into case crime no.C-5 of 2002, under sections 323, 504, 506 IPC and Section 3(1)(x) S.C./S.T. Act; that above N.C.R. and F.I.R. have been lodged with false and baseless allegations; that the real fact is that the first informant being Gram Pradhan was making misuse of his office and so the applicants moved an application on 27.6.2002 to S.D.M., Meerut against his illegal acts of attempting to convert the nature of public land plot no.204, supported with affidavit of applicant no.1 at annexure no.9 and on the complaint so made by the applicants, vide order dated 18.12.2002 Annexure no.10, the District Panchayat Raj Adhikari stopped the operation of Gramnidhi Accounts 1,2 and 3 by the signatures of first informant, Bhoop Chandra opposite party no.2; that in order to counter blast, the above complaint, made against the first informant, he has lodged false complaint under N.C.R. and got it converted into F.I.R. by getting it added the offence under section 3(1)(x) S.C./S.T. Act; that the provisions of Section 3(1)(x) of S.C./S.T. Act, are not attracted in this case, as it is nowhere mentioned in the F.I.R. or application under section 156 (3) Cr.P.C. that "applicants are not members of scheduled caste or scheduled tribe and intentionally insulted or intimidated with intent to humiliate the respondent no.2 within public view" and so no offence punishable under section 3(1)(x) of S.C./S.T. Act, is made out against the applicants; that since the allegation levelled in the report does not state that the applicants being not members of Scheduled Caste or Scheduled Tribe committed insult and intimidation to opposite party no.2 and the insult and intimidation was made with an intention to humiliate the member of the S.C./S.T. community, mere and in absence of such averments insult or intimidation, if any, would not attract the provisions of Section 3(1)(x) of the SC/ST Act; that the Investigating Officer without collecting sufficient evidence and without considering that the main ingredients, as required under the provisions of section 3(1)(x) of S.C./S.T. Act, is absent from the complaint made by first informant, has submitted charge sheet and the Magistrate concerned has taken cognizance without applying his mind to the facts of the case; that moreover upon submission of charge sheet, the Magistrate at the time of taking cognizance without issuing any summons, directly issued non bailable warrants, which is against the procedure prescribed by law; that in the circumstances, the impugned orders dated 18.2.2003 and 27.3.2003 of taking cognizance and issuing non-bailable warrants, respectively, as well as further proceedings in criminal case no.378 of 2003 (State Vs. Satendra and others), under sections 323, 504, 506 IPC and Section 3(1)(x) of S.C./S.T. Act, P.S. Jani, District Meerut pending before Special Chief Judicial Magistrate, Meerut are liable to be quashed. In support of his argument, the learned counsel for the applicant has relied on (2009) 1 SCC (Crl) 446.

Per contra, learned AGA submitted that the F.I.R. of opposite party no.2 a person of scheduled caste was not lodged under relevant sections rather case was registered at N.C.R. under influence of people of upper caste; that upon application of opposite party no.2 and order of the court, the case was rightly converted in case crime no. C-5 of 2002, under sections 323, 504, 506 IPC and Section 3(1)(x) S.C./S.T. Act and upon investigation and finding sufficient material evidence against the applicants, charge sheet was submitted, upon which cognizance has rightly been taken by the court concerned; that it is wrong to say that application does not contain the necessary ingredients of an offence, as required under provisions of section 3 (1) (x) S.C./S.T. Act; that undisputedly, the applicants are Brahamins being Sharma by caste and the first informant opposite party no.2 belongs to scheduled caste; that admittedly Brahamins do not fall under any of the categories in scheduled castes or scheduled tribes; that it has been clearly mentioned in F.I.R. that on 11.11.2002, the opposite party no.2 was going from village Thaulri to his village Basa Tikri and when he reached near Kosi Waley Peer at about 5:00 p.m., applicants, who were standing on the public way after calling him by caste name and abusing by the name of mother-sister committed marpeet with him, as he had refused to allot the land of "Land Management Committee", in favour of applicants; that admittedly applicants are Sharma by caste and belong to upper caste and since the opposite party no.2 belongs to scheduled caste, and was elected village pradhan, the applicants felt ill of the election of a member of scheduled caste, for the post of village pradhan of village Bhavi, and in order to interrupt in his smooth working as well as to harm and harass him, false complaints were moved by them against opposite party no.2; that on above complaints moved on behalf of applicants, the members of upper caste at Annexure no.9, an order was also obtained at Annexure no.10, without adopting any proceedings in accordance with rules; that on representation made by the villagers of village Bhavi, the Commissioner of Meerut Division, Meerut upon finding that without conducting any proceedings in accordance with rules, the village pradhan has been found guilty, he directed for inquiry in accordance with rules and prescribed procedure vide order at A-11; that in counter affidavit filed by opposite party no.2, papers filed at Annexure C.A.-2 show that complaints were made by people of village Bhavi (under Gram Panchayat Bhavi) to D.M. Meerut with its copies to S.D.M., Tehsildar and S.S.P., Meerut against the unlawful acts of the applicants and their associates of upper caste, against persons of scheduled caste; that since the applicants and their associates were interfering with the meeting of opposite party no.2 in Primary Pathshala Bhavi, as well as due to their interference with the working of Gram Panchayat and demand of money, the opposite party no.2 made complaints to B.D.O. and D.P.R.O. concerned of District Meerut on 8.4.2002 at C.A.-2; that after a period of two months from the above complaints at C.A.-2 against the applicants and their associates, the applicants moved false complaint against the alleged irregularities of opposite party no.2 and then committed the incident in question on 11.11.2002 on account of hate towards persons of schedule caste and scheduled tribes; that despite affording opportunity and granting no more time for filing rejoinder affidavit on 27.4.2006, the applicants could not dare to file any rejoinder affidavit during last more than 10 years from 27.4.2006; that as per the averments made in N.C.R., that opposite party no.2 was going from village Thaulri to his village and when he reached near jungle ke peer, the applicants committed incident in question, which shows that the incident has taken place on the public way in public view and not in the forests; that from the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants; that issues of fact raised by this application are subject matter of jurisdiction of trial court and can be looked into only by trial court upon evidence before it and may not be decided in this application.

Before proceedings further, I find it proper to reproduce the provisions of section 3(1)(x) of S.C./S.T. Act and section 73 of Cr.P.C. as under :-

"Section 3. Punishments for offences of attrocities.-(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;

Section 73. Warrant may be directed to any person.- (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non- bailable offence and is evading arrest."

It is settled law that if the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the applicant to face the criminal trial under the SC/ST Act would be totally unjustified leading to abuse of process of law. In para 6 of the judgment in the case of Gorige Pentaiah Vs. State of Andhra Pradesh & others reported in (2009) 1 SCC (Cri.) 446, the Apex Court has observed that:- -

"In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27.05.2004, 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."

All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.

Upon hearing learned counsel for the parties and perusal of record, I find that the names of applicants mentioned at the top of the application carries surname Sharma, which means Brahims by caste, which is undisputedly not a scheduled caste. There is no whisper in the application or affidavit given in support of application, that applicants are not members of upper caste rather are members of scheduled caste and without belonging to Brahmin caste, use Sharma as their surname, so there appears no need for any specific allegation regarding the accused-applicants being not a member of scheduled caste in the application under section 156(3) Cr.P.C., while the names of applicant-accused have been mentioned as Satendra Sharma and Aniruddha Sharma. In view of the facts of this case, the law laid down by the Apex Court in the case of Gorige Pentaiah Vs. State of Andhra Pradesh and others (supra), has no application.

In view of the facts, the disputed defence of the accused-applicant cannot be considered at this stage and in this application, it may not be decided that whether applicants made false complaints against opposite party no.2, in order to counter blast the complaints of village people or the F.I.R. has been lodged as a matter of counter blast.

In view of the discussions made above, I have come to the conclusion that the applicants have failed to show any sufficient ground for exercise of inherent powers by this Court so as to prevent the abuse of process of any court or otherwise to secure the ends of justice and there is no sufficient ground for quashing the charge sheet, the cognizance order dated 18.2.2003 or the proceedings of criminal case no.378 of 2003 and the prayer in this respect is refused.

However, I find force in the contention made by applicants in respect of illegality in the order issuing non bailable warrants on the very first day of taking cognizance, without issuing summons and without the applicants having any knowledge of the proceedings. Section 73 of Cr.P.C. specifically provides that the Magistrate, may direct a warrant for arrest of any of escaped convict, proclaimed offender or of any other person, who is accused of a non-bailable offence and is evading arrest. There is nothing on record to show that summons were ever issued against the applicants since taking of cognizance on 18.2.2003 and they were evading their appearance before the court concerned. In view of the provisions, the subsequent order dated 18.2.2003, issuing non-bailable warrants fixing 27.3.2003 for appearance and repeating the same order on 27.3.2003 fixing 12.5.2003 and also issuing process under section 82 Cr.P.C., are wrong and illegal and if allowed, to stand may cause injustice to the applicants and the order issuing non-bailable warrants and process under section 482 Cr.P.C. are nothing, but abuse of process of court and are liable to be quashed.

Considering the totality of facts, I find that only the order dated 18.2.2003 to the extent of issuing non-bailable warrants and order dated 27.3.2003, issuing non bailable warrants and process under section 82 Cr.P.C., are liable to be quashed and the application under section 482 Cr.P.C., is liable to be allowed partly to above extent and is liable to be rejected partly, for the prayer for quashing the cognizance order dated 18.2.2003 or for quashing the proceedings in criminal case no.378 of 2003 (State Vs. Satendra and others), under sections 323, 504, 506 IPC and Section 3(1)(X) of S.C./S.T. Act, P.S. Jani, District Meerut pending before Special Chief Judicial Magistrate, Meerut.

The application u/s 482 Cr.P.C. is disposed of accordingly with the observation that if the applicants appear before the Magistrate/Special Judge concerned and move applications for bail, the same shall be decided expeditiously in accordance with law.

Interim order, if any, stands vacated.

Order Date :- 29th July 2016

Tamang