Shiv Kumar vs State Govt. Of Nct Of Delhi & Anr.
2012 Latest Caselaw 168 Del

$~20
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CRL.M.C. No. 1798/2011

%            Judgment delivered on:10TH January, 2012

      SHIV KUMAR                                      ..... Petitioner
                              Through :   Ms. Sunita Bhardwaj, Adv.

                     versus


      STATE GOVT. OF NCT OF DELHI & ANR. .... Respondents
                    Through : Ms.Rajdipa Behura, APP for
                    State/R-1.
                    Mr. Bal Anand, Younger brother of R-2.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT


SURESH KAIT, J. (Oral)

1. The instant petition was first enlisted on 27.5.2011 and notice was issued. Vide the even date, the proceedings before the trial court were also stayed.

2. It is noted that on 11.8.2011, the notice were already served on respondent No.2, however, respondent No.2 preferred not to appear in the Court on 23.9.2011.

3. On 9.12.2011, the following order was passed:

"1. Petitioner has assailed the order dated 02.05.2011, whereby ld. M.M. has recorded that the complainant has alleged that offence under Section 120B/143/147/199/

200/205/323/341/352/419/506/34 Indian Penal Code, 1860 and 3(1) ix, x and 3 (2) vii of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been committed.

2. Ld. M.M. has also recorded that as far as the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned three ingredients should be fulfilled:

"(i) A person making the alleged derogatory utterances must have the person whom he intentionally insulting, intimidates with intention to humiliate was a member of SC/ST.

(ii) Such intentions, insult, intimidation or humiliation must be directed against and made to a member of SC/ST and for being member of SC/ST.

(iii) The utterances must be made at any public place within public view"

3. Therefore, ld. Trial Judge issued summons dated 05.02.2011 against the petitioner also. Ld. Counsel further submits that ld. Metropolitan Magistrate has wrongly passed the order and issued summon against the petitioner as firstly, the provision of Scheduled Caste and Scheduled Tribe Atrocities Act are not applicable because of the fact that petitioner himself belongs to Scheduled Caste. Therefore, Under Section 3, the offence if committed by other than Scheduled Caste, the process can be issued against him.

4. Secondly, ld. Counsel has pointed out that enquiry has been conducted by Assistant Commissioner of Police and he has recorded in his enquiry that MLC results of Suresh Kumar Ranga, Respondent no. 2 and Rajendera Jain shows no injury marks and MLC results of Jai Rattan could not be available as he had not supplied his treatment documents to IO. Relying on the submission of the witnesses, the said Assistant Commissioner of Police

filed his report that no ground to take cognizance under Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

5. Ld. Counsel has pointed that offences under the said Act are also not different against the petitioner as respondent no. 2 is habitual complainant and earlier also vide order dated 05.07.2006 in Crl. M.C.1538/2004 proceedings of the FIR NO. 240/2002, under Sections 324/326, 506 (II) Indian Penal Code, 1860 read with Section 3 (1) (ii), (x) and 3 (2) (vii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 registered with Police Station-Parliament Street, New Delhi as well as the summoning order dated 12.05.2004 issued by ld. MM was quashed.

6. Ld. Counsel further submits that in the instant case when any action was not taken by the police, respondent no. 2 approached this court for the direction to lodge the FIR and action thereof. Vide order dated 02.12.2005, this court directed to inquire the complaint and if required, register the case and action be taken in accordance with law which is as under:-

"Having regard to these facts and circumstances, it is directed that the complaint of the petitioner shall be looked into by an officer not below the rank of Assistant Commissioner of Police and if the commission of offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, or any other law is found to have been committed, the FIR will be registered and action taken in accordance with law.

7. Thereafter, matter was enquired by the ACP of Sub- division, Greater Kailash District, who filed the report as discussed above. The same was not accepted by the Trial Judge and the summons in question issued under Section 323/341 Indian Penal Code, 1860 apart from the

provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, against the petitioner also.

8. Ld. Counsel has drawn the attention of this court to the enquiry being conducted by the Assistant Commissioner of Police, wherein he has recorded as under:-

"I have also re-examined Sh. Lallan Singh, the then Asstt. Labour Commissioner, who was conducting the proceedings in his office on 10.06.2005. He stated that there was no manhandling or use of castiest words during the proceedings. Only verbal exchange of words was taken place there. I also examined K. Rama Chandran Diwan, Singh, Nand Kishore Suresh Kumar, Jai Prakash etc. As per their statement no castiest words were used against Suresh Ranga and others."

9. Therefore, he submits that the impugned order issued by ld. MM is without application of mind and the said judge has not taken this report into account.

10. The trial court has recorded in the impugned order that in pursuance of the direction of the High Court, enquiry was also conducted by Commissioner of Police, who recorded therein that the present dispute is between two groups of CONCOR India Labour Union regarding the representation of office bearers on one side and Anil and Others on the other side. Suresh Kumar Ranga is not associated with CONCOR India Ltd. and as per the statements of the public witnesses present at the time of evidence, no cognizable offence was committed.

11. Ld. Counsel has also submitted that complainant has alleged that offence under Section 120B/143/147/ 199/200/205/323/341/352/419/506/34 Indian Penal Code, 1860 of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act has been committed by all alleged accused persons; whereas the summons were issued only against the Umesh Sharma and respondent no.2 Shiv Kumar/petitioner under Section 323/341 Indian Penal Code, 1860 and 3 (i) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

12. I note that vide order dated 27.05.2011, proceedings before the trial court was stayed. Though, respondent no. 2 has been served, inspite of that he preferred not to appear in Court.

13. In the interest of justice one more opportunity is given to respondent No.2.

14. Re-notify on 21.12.2011."

4. The instant petition was again taken on 21.12.2011. Mr. Suresh Kumar Ranga/respondent No.2 appeared in person and has raised the issue that he did not receive legible copy of the paper book. The petitioner was directed to supply the paper book within three days. Copy thereof has been supplied by the petitioner. Thereafter the matter was listed for today.

5. Mr. Bal Anand, younger brother of respondent No.2 Suresh Kumar Ranga has appeared in the Court and submits that some one has expired in the relation of advocate of respondent No.2, therefore, he is unable to come in the Court today and has sent him to inform the Court and take adjournment.

6. I have checked the "B" part of the judicial file where there is no vakalatnama filed by any advocate engaged by respondent No.2.

Therefore, I am of the view that respondent No.2 is interested in delaying the matter. As he firstly did not appear and now he is attempting the other routine work and has not preferred to appear before this Court.

7. Though today's date was fixed with the consent of both parties, since respondent No.2 has preferred not to appear either in person or through advocate, therefore, under the compelling circumstances, I am passing the order in his absence.

8. The main issue in the present petition is that the petitioners belong to Scheduled Caste community. He cannot be charged under Sections 3(1) ix, x and 3 (2) vii of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

9. As noted above, there was no injury as per the MLC on respondent No.2 and as per the status report having being filed by the police before the trial court, no injury was caused on respondent No.2. Therefore, in the circumstances, the summoning order date 02.05.2011 is set aside and the petitioner is discharged from all the charges under Sections 323/341 Indian Penal Code, 1860 read with Section 3(1) ix, x and 3 (2) vii of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act, 1989.

10. Criminal M.C. No. 1798/2011 is allowed.

Crl. M.A. No. 6456/2011 (Stay) The interim order passed is vacated and the application is

dismissed as infructuous.

SURESH KAIT, J JANUARY 10, 2012 'raj'