Kamla Devi vs State
2007 Latest Caselaw 495 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The petitioner has impugned a judgment and order dated 1.8.2005 of the learned Additional Sessions Judge (hereafter called 'the ASJ'). By the said impugned order, the ADJ had interfered with the summoning order of the Metropolitan Magistrate, under which the respondent/accused had been been summoned for allegedly committing offences under Sections 323/341/354/308/506 read with Section 3 of SC and ST (Prevention of Atrocities) Act, 1989 (hereafter 'the SC/ST Act').

2. The allegation levelled by the complaint, was that on 1.12.1999, when she was going with her son, after purchasing vegetables, the respondent accused started abusing her/calling her names. It was further alleged that upon being questioned by her son as to why he was doing so, the accused assaulted her son and also allegedly molested her.

3. The complainant led the summoning evidence, in the course of which she along with her son Dalip Kumar and Dr. Muni Raj Sharma as well as one Mr. Puran Chand deposed in the proceedings. After considering the materials, the learned Magistrate issued the summoning order on 29.7.2002. The offences which the respondent/accused was called upon to answer were under Sections 323/341/354/308/506 read with Section 3 of the SC and ST (POA) Act, 1989.

4. The respondent accused preferred a revision to the ASJ who by impugned order allowed the same and partially modified the order of the trial court. The reference to offences under Sections 308/354 and Section 3 of the SC and ST Act were deleted.

5. Ms. Manjusha Wadhwa, learned Counsel contended that the ASJ was not justified in deleting/modifying the summoning order in so far as it pertained to 354 and Section 3 of the SC and ST Act. It was contended that the petitioner had produced a valid certificate to the effect that she belonged to the 'Koli' caste, which according to her is notified Scheduled Caste in the Presidential Order. Apparently, the complainant had originally filed a certificate dated 17.5.1982 issued by the SDM, Delhi to the effect that she belonged to the 'Koli' caste. However, in the course of these proceedings, she relied upon a caste certificate dated 28.5.2005 issued by the authorities in U.P. which stated that the petitioner belongs to the 'Kori' caste. Learned Counsel referred to Entry 50 in Para 8 of the Constitution (Scheduled Castes) Order, 1950 so far as it pertains to the State of U.P. to say that the petitioner indeed belongs to a notified caste and, therefore, the Court was not justified in interfering with the summoning order to that effect.

6. It was also contended that the impugned order is erroneous as it has deleted the reference to Section 354 of the I.P.C. even though there was ample material to justify the summoning in that regard. Learned Counsel took me through the pre-summoning evidence in support of her submission.

7. The accused respondent No. 2 Sh. P.L. Yadav is present in the Court. He opposed the petition and submitted that the certificate relied upon by the petitioner is untrustworthy and in any case it does not establish that she belongs to any Scheduled Caste. It was contended that the certificate of the authorities in U.P. cannot be relied upon in view of the Constitution Bench judgment in Marri C. Shekhar Rao v. The Dean, Seth G.S. Medical College . The accused respondent also contended that the learned Additional Sessions Judge was justified in interfering with the summoning order as no material existed to make out a case under Section 354.

8. The above narrative would disclose that the summoning order was premised the petitioner belonging to a Scheduled Castes. The certificate relied and produced along with the complaint indicated that the petitioner belonged to the Koli caste. That certificate belong to the petitioner's husband. However, 'Koli' is not notified as a Scheduled Castes in Constitution (Scheduled Castes) Order, 1950 so far as it pertain to the State of U.P. As held by the Supreme Court in the judgment reported as State of Maharashtra v. Milind and Ors. (2001) 1 SCC 4, it is not open in view of the terms of Articles 341-342 to the Court to go behind the terminology adopted in the Scheduled Castes. Even the Union of Government or any State Authority is not empowered to do so. In case of any clarification or an amendment, that has to be effected only by an Act of Parliament. In that case, the Court was concerned with the question whether variations in the community 'HALBA/HALBI' could be judicially gone into. The Court, in view of the previous rulings, declined to do so. In view of the said authority, I am of the opinion that it is not open for this Court to investigate as to whether the petitioner belonged to the 'Koli' or 'Kori' community; it is sufficient for the purposes of deciding this petition that the certificate relied upon by her i.e. one issued in favor of her husband did not describe the community (to which she claimed to belong) as a part of the Scheduled Castes in relation to U.P. Therefore, the impugned order to the extent it modified the order on charge and deleted the offence under Section 3 of the Sc and ST Act cannot be found fault with.

9. As far as the complaint with regard to the wrongful interference with the summoning order so far as it pertains to the allegations of offences under Section 354 are concerned, it would be useful to extract the statement of the petitioner in that regard which is to the following effect:

Prabhati Lal, Paramjit and Shakuntala dragged my son inside their house. Prabhati Lal had a rod in his hand. My son was caught hold of by Paramjit and Shakuntala and Prabhati lal hit him with the rod on his head. As soon as I entered to save my son, Prabhati Lal caught hold of my hair and caught hold of my breast, pushed me down and put his hand inside my clothes from the side of my waist. I raised noise and on this neighbour Muni Lal Sharma came and rescued me from Prabhati Lal. Prabhati Lal also dragged Muni Lal Sharma and hit him with rod on his arm. He exhorted that this Pandit was the cause of trouble and he should be finished to death.

10. Similarly, CW-2 i.e. Dalip Kumar son of the petitioner also deposed in similar lines i.e. He was calling foul names. On this Paramjit and Shakuntala caught hold of me and dragged me. Prabhati Lal hit me twice on the head with a saria. My mother also reached there. When my mother reached their door Prabhati Lal caught hold of her hair and hit his hand on her breast. He put his hand on the back side of my mother and threw her down. When we raised noise may meighbours also collected there. On-one saved us. On Muniraj Sharma came out on hearing our cries. When he tried to save me, he got a saria blow on his arm. However, he saved me. Thereafter, we went to P.S. We saw that Prabhati Lal was already sitting in the P.S.

11. The impugned order has no-where discussed the effect of the above which was taken into consideration by the learned Magistrate. In fact, there is no discussion on the correctness or otherwise of the summoning order in so far as it pertains to Section 354. The above evidence is sufficient for a summoning order in respect of that offence. I am, therefore, of the opinion to that extent the impugned order is clearly in error.

12. In view of the above findings, the petition has to partly succeed. The impugned order of the ASJ as far as it interfered with the summoning order relating to Section 354 of the IPC is hereby set aside. The summoning order to that extent is restored.

13. The petition is allowed in the above terms. CRLM.A. 9950/2005 accordingly disposed off. No costs.