Arvind Kumar Kureel And Anr. vs State Of U.P. And Anr.
2016 Latest Caselaw 6394 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 23
 

 
Case :- CRIMINAL REVISION No. - 892 of 2011
 

 
Revisionist :- Arvind Kumar Kureel And Anr.
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Bijai Prakash Tiwari
 
Counsel for Opposite Party :- Govt. Advocate,Rakesh Dubey
 

 
Hon'ble Prabhat Chandra Tripathi,J.

Heard Sri Bijai Prakash Tiwari, learned counsel for the revisionists, Sri Rakesh Dubey, learned counsel for the opposite party no. 2 and learned A.G.A. for the opposite party no. 1.

The present criminal revision has been preferred by the revisionists for setting aside the order dated 31.01.2011 passed by the learned Special Judge SC/ST Act in S.T. No. 1183 of 2010-State Vs. Radha Krishna Tripathi and others, under Sections 323, 504 I.P.C. and 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Bithoor, District Kanpur Nagar, whereby the learned Special Judge, SC/ST Act, Kanpur Nagar has ordered to frame charges under Sections 323, 504 I.P.C. and under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the accused-revisionist No. 2 and under Sections 323, 504 I.P.C. against the accused-revisionist No. 1.

The brief facts of the F.I.R. in narrow compass are that the alleged incident took place on 23.4.2004 at about 4.00 P.M. (evening) and the F.I.R. was lodged on 25.8.2007 at about 9.30 A.M. (morning). The applicant Devi Sahai Kureel son of late Dallu Kureel, resident of Ramnagar, Police Station Bithoor, District Kanpur Nagar has presented a written report before the Senior Superintendent of Police, Kanpur Nagar that the applicant belonged to scheduled caste and is labourer by profession. On 23.4.2004 in the evening when he was lookingafter his cultivation of vegetables, at the same time, about 8-10 persons arrived there, amongst them R.K. Tripathi son of late R.P. Tripathi, resident of G-266 Panki, Kanpur, the then J.E. Mandhana of Electricity Department and Arvind Kumar, son of Sri Bhagwandin, resident of 5/1 Bishnupuri Colony, Kanpur Nagar, the then S.D.O. Bilhaur and other 3-4 persons started ploughing the fields with the help of tractor. The applicant was sitting on a cot and he was thrown away from the cot and was given the blows by kicks and fists and his cot was broken. They also hurled abuses at him by making casteist remarks which were mentioned in the F.I.R. When the wife of the applicant rushed to rescue him then she was also beaten. On her exhortation, the persons who were working in nearby fields, came there and rescued them. He made a complaint to the police officers and District Magistrate but no heed was paid and no action was taken.

Learned counsel for the revisionists has submitted that the congnizance taken by the learned Special Judge SC/ST Act, Kanpur Nagar of the offences mentioned in the impugned order dated 31.01.2011 is barred by Section 468 Cr.P.C. The offence under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 must be committed in any place within public view. It is further submitted that the revisionist no. 1 had already lodged an F.I.R. against Bhaiyan and others in Case Crime No. 201 of 2004, under Sections 332, 504, 506 I.P.C., Police Station Bithoor, District Kanpur Nagar and charge sheet has also been submitted, therefore, the present case has been lodged against the revisionists due to previous enmity.

Learned counsel for the revisionists has placed reliance on a decision of the Apex Court in the case of Asmathunnisa Vs. State of Andhra Pradesh Represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and another, 2011 Law Suit (SC) 278 in support of his contention.

Learned counsel for the opposite party no. 2 has vehemently opposed the arguments advanced by learned counsel for the revisionists and has submitted that the offence under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is 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 this case, the provisions under Section 468 Cr.P.C., 1973 are not applicable. Furthermore, it has also been argued that  words "in any place within public view" has been covered by contents mentioned in the F.I.R.

Learned counsel for the opposite party no. 2 has relied upon a decision of the Apex Court in the case of Japani Sahoo Vs. Chandra Sekhar Mohanty, (2007) 3 Supreme Court Cases (Cri) 388 in support of his contention.

I have perused the record including the impugned order dated 31.01.2011 passed by the learned Special Judge, SC/ST Act, Kanpur Nagar and also perused the decisions relied upon by the learned counsel for both the parties.

On perusal of the charge sheet in Case Crime No. 226 of 2007, under Sections 323, 504 I.P.C. and Section 3(1)(x) SC/ST Act submitted against the accused person Radha Krishna Tripathi, the then J.E. Mandhana (now retired) and in the impugned order dated 31.01.2011 it has been specifically mentioned that the delay in lodging of the F.I.R. has been explained and it has been mentioned that since no attention was paid to the complaint hence it has been inferred by the learned Special Judge, SC/ST Act, Kanpur Nagar that the application of the informant is not barred by limitation.

It would not be out of context to mention here that Section 473 Cr.P.C. suffices the inherent power of the Court for condonation of delay. For a ready reference, Section 473 Cr.P.C. is quoted below:-

"473. Extension of period of limitation in certain cases-Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice."

In view of the opening non obstante clause in Section 473, that section will prevail over all other provisions in Chapter XXXVI with regard to limitation including Section 468, Cr.P.C. If the Court is satisfied, that the complainant has properly explained the delay, or ultimately if the Court comes to the conclusion that in the interests of justice it is a fit case where the delay has to be condoned, the Court is not precluded from applying Section 473, Cr.P.C. (1979) 2 Kant LJ 206 (209) : 1991 (1) All Cri LR 475 (476) : 1992 (1) Chand Cri C 532 (P & H).

Moreover, the offence under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, 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. Thus, the provisions contained under Section 468 Cr.P.C. do not apply in the instant case.

After considering the arguments advanced by the learned counsel for both the parties, I am of the view that the impugned order dated 31.01.2011 passed by the learned Special Judge, SC/ST Act, Kanpur Nagar suffers from no illegality, perversity or impropriety and no interference is warranted by this Court at this stage. The revision sans merit and is liable to be dismissed.

The revision is accordingly dismissed.

Interim order, if any, stands vacated.

Order Date :- 4.10.2016

Rmk.