Delhi High Court

G.P. Muthu & Ors vs The State Govt Of Nct Of Delhi & Anr on 30 August, 2019

$~57
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of decision: 30.08.2019

+      CRL.M.C. 4867/2017
       G.P. MUTHU & ORS                                     ..... Petitioners
                          Through:      Mr.Rakesh Wadhwa, Adv. with
                                        Ms.Prarthana Singh, Adv.

                          versus

       THE STATE GOVT OF NCT OF DELHI & ANR ..... Respondents
                    Through: Mr.M.S. Oberoi, APP for State.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT
                         J U D G M E N T (ORAL)

1. Vide the present petition, the petitioners seek direction thereby setting

aside Order dated 29.09.2016 passed by the learned ASJ-02/FTC, Patiala

House Courts, New Delhi, in Criminal Revision Petition No. 81/2016, in

FIR No.318/2015 dated 26.10.2015, registered in Inder Puri Police Station,

New Delhi and all the consequential/incidental proceedings arising

therefrom.

2. The case of the petitioner is that the aforesaid FIR was registered

against the petitioners on the basis of complaint lodged by Respondent No.2

herein. In the said FIR, it is alleged by the Respondent No.2 that on

25.10.2015 at about 6 P.M., when the Respondent No.2 went to meet his

brother Mohit, who used to run a Rehri/Stall in the locality, petitioner No.3

was abusing his brother and thereafter, a fight took place between three of

them. Meanwhile, Petitioners No. l and 2 also reached at the spot and a

scuffle took place. Thereafter, the Petitioner No.3 took the Respondent No.2

on one side whereas the Petitioner Nos.l and 2 caught hold of the

Respondent No.2 and Petitioner No.3 inflicted injuries to the Respondent

No.2 with a sharp edge weapon and the Respondent No.2 sustained injuries

on his left cheek and shoulder. Thereafter, respondent no.2 called at 100

number and the uncle of the Respondent No.2 took him to RML Hospital. At

the time of leaving, the Petitioners threatened the Respondent No.2 for his

life and also uttered caste related remarks/comments against the Respondent

No.2. Thereafter, on the basis of the complaint of respondent no.2, initially

FIR was registered under sections 323/341/506/34 of the IPC and the

Petitioners were released on anticipatory bail by the police as all the

offences are bailable in nature. Thereafter, the Respondent No.2 filed the

complaint case u/s 156 (3) of Cr.P.C against the Petitioners and the said

Complaint case was dismissed by the Ld. M.M. vide its order dated

06.04.2016.

3. Being aggrieved, the Respondent No.2 preferred Revision Petition

vide Criminal Revision No.81/2016 and the said revision petition was

disposed of vide order dated 29.09.2016 passed by Ld. ASJ-02/FTC, Patiala

House Courts, New Delhi with the direction that the investigation for the

offences under Section 3(1) (x) of the SC & ST Act must be conducted in

the said case by the rank of the officer of ACP as per Rule 7(1) of SC & ST

Rules, 1995.

4. On the basis of the said order, the Police further investigated and

added the offence u/s 307 IPC and Section 3(1) (x) of the SC & ST Act in

the said FIR after recording statement of Respondent No.2 u/s 161 of

Cr.P.C.

5. Counsel for the petitioner further submits that the said statement is a

case of complete departure from the FIR. Thereafter, the petitioners no.3 and

4 were arrested on 13.09.2017 and were released on regular Bail by the court

of Ld. ASJ, vide its order dated 17.10.2017.

6. He further submits that petitioner nos.3 & 4 were arrested in the said

case after almost two years after registration of the FIR and no police

remand was sought by the police of the said petitioners and nothing

incriminating has been recovered at the instance of the petitioners.

Thereafter, the Petitioner Nos.1 and 2 moved the anticipatory bail

application and the same has been dismissed by the Court of Ld. ASJ,

Patiala House Courts, New Delhi vide its order dated 09.11.2017.

7. Being aggrieved, the Petitioner Nos.3 and 4 approached this court and

vide order dated 13.12.2017, anticipatory bail was granted to them.

8. The present petition has been filed on the ground that order dated

29.09.2016 passed by the learned ASJ is not sustainable in the eyes of law as

the Petitioners were never given the opportunity of being heard by the said

Revisional Court. The law is very well settled in this regard that no order to

the prejudice of an accused or any other person can be passed by the

Revisional Court, unless the Petitioners have been given an opportunity of

being heard, however, none of the petitioners have ever been called or

summoned by the said Court.

9. Counsel for the petitioner further submits that the Revisional Court

has failed to appreciate that there is no public witness to support the

allegation of the Respondent No.2 and the police have also failed to produce

any witness (s) in support of allegations attracting provisions of SC & ST

Act, 1989. The allegations levelled by respondent no.2 are false and

fabricated and has been levelled against the petitioners in order to harass,

humiliate and blackmail the petitioners. The falsity of the story of the

Respondent No.2 itself can be proved from the mere fact that in the said

FIR, section 3 (1) (x) of SC & ST, 1989 was added after almost delay of

two years i.e. after passing of the Order dated 29.09.2016 by the Court of

learned ASJ-02/FTC, Patiala House Courts, New Delhi.

10. It is further submitted that in order to constitute offence under

provisions of SC & ST Act, there should be an "intention to insult" with an

"intent" to humiliate SC/ST member by a non-SC/ST member and the said

insult should be done within "public view".

11. To strengthen his argument, learned counsel for the petitioner has

relied upon the case of Manharibhai Muljibhai Kakadia & Anr. vs.

Shaileshbhai Mohanbhai Patel & Ors.: MANU/SC/0819/2012 decided in

Criminal Appeal No.1577/2012 arising out of SLP(Crl.) No.446/2007

decided on 01.10.2012 by the Hon'ble Supreme Court whereby it held that

"...........on a plain reading of sub-section (2) of Section 401, it cannot be

said that the person against whom the allegations of having committed

offence have been made in the complaint and the complaint has been

dismissed by the Magistrate under Section 203, has no right to be heard

because no process has been issued. The dismissal of complaint by the

Magistrate under Section 203 - although it is at preliminary stage -

nevertheless results in termination of proceedings in a complaint against the

persons who are alleged to have committed crime. Once a challenge is laid

to such order at the instance of the complainant in a revision petition before

the High Court or Sessions Judge, by virtue of Section 401(2) of the Code,

the suspects get right of hearing before revisional court although such order

was passed without their participation."

12. To deal with the aforesaid cited judgment, it is pertinent to mention

here that since police did not register a case against the petitioners based on

serious injuries against respondent no.2, he moved a petition under section

156(3) of Cr.P.C. for a proper investigation. On the said application, learned

MM vide order dated 06.04.2016 observed as under:

"IO/SI Sunder Singh has filed progress report in the form of status report.

Progress report reveals that MLC report has been obtained by the IO and section 325 of IPC has been added and the matter is being investigated. Having gone through the materials on record and the status report, this court does not deem it fit to seek further report.

Further, this court does not deem it fit to pass any direction for addition or deletion of any provision of law in the police report before the final report. Final report be awaited. Record be put up with final report when filed in the court.

Application is accordingly disposed off."

13. Being aggrieved, respondent no.2 filed revision petition before the

sessions court and the same was disposed of with the directions that the

investigation for the offence under section 3(1) (x) of the SC & ST Act must

be conducted and should be done so by an officer not below the rank of an

officer as per Rule 7 (1) of the SC & ST Rules, 1995.

14. Since the learned Judge only directed the police to investigate for the

offences mentioned above, therefore, he recorded in the impugned order that

no notice of the revision petition was directed to be issued to the accused

persons although they were made party therein.

15. Now the question before this Court is, whether before passing the

order, the petitioners should have been given hearing?

16. In the present case, FIR was already lodged and the police did not

investigate on the injury caused to the respondent no.2 and the offences

arising therefrom and the learned Judge only directed the police to further

investigate in the aforesaid FIR as per law.

17. It is not the case of the petitioners that the police did not register a

case against them and the complainant filed petition under section 156(3) of

Cr.P.C. and the same was dismissed by learned MM and thereafter

revisional court allowed the same without hearing the petitioners/accused.

18. In the present case, complaint u/s 156(3) Cr.PC was filed for directing

the police to conduct proper investigation on the incident of injury caused to

respondent no.2 and for offences committed under the SC/ST Act. The

complaint was dismissed by the learned Trial Court on the ground that

Section 325 IPC has already been added to FIR and the case does not

warrant further directions.

19. The case of Manharibhai Muljibhai Kakadia & Anr.(Supra) cited by

the petitioners is not relevant for the reason that the observation of the

Supreme Court was in a case when the FIR was not lodged and the

complaint under section 156(3) of Cr.P.C. was filed. Application/complaint

under Section 156(3) was at the stage of investigation and is a pre-

cognizance stage. At this stage, accused has no substantive right of hearing

and directions. Moreover, no prejudice seems to be caused to the petitioners,

if they are not made party before Revisional Court, whereas such

complaint/application was decided and further directions for investigation

are passed.

20. On the applicability of Section 3(1) (x) of SC/ST Act and on the issue

of a public view, counsel for the petitioners has relied upon the case of

Bharat Petroleum Corporation Limited, Mumbai vs. Union of India: 2000

LawSuit (AP) 374 decided on 28.06.2000 of the High Court of Andhra

Pradesh whereby the said court while setting aside the judgment of learned

single Judge of Madhya Pradesh High Court, noted in Karan Singh sv. State

of M.P., 1992 Crl.LJ 3054, wherein the distinction was drawn between

public place and public view in Para 5 which is extracted below:

"From the material on record in the case diary, further it cannot be said that the incident took place at place within public view. The words used in the provision are in place within "public view" and not in a "public place". There is clearly a distinction between an incident taking place within public view and incident taking place in a public place. The incident took place at about 11.00 p.m. and the accused party only was present on the spot and what transpired between them has not been alleged to have taken place within public view. In these circumstances, it cannot be said that all the ingredients of offence under Section 3(1)(x) of the Atrocities Act have been made out. There is absolutely no material to proceed against the accused persons for a charge on that count. The charge is groundless and deserves to be quashed at the investigation stage itself".

21. In the present case, respondent no.2 has been attacked by the

petitioners (4 accused) and consequent thereto, FIR mentioned above was

lodged.

22. It is not in dispute that petitioners and respondent no.2 are neighbours

and they know the caste of each other. Therefore, as per provision of SC &

ST Act, if any offence of IPC is committed against the member of SC & ST

knowing well, he or she belongs to that category, provisions of SC & ST Act

automatically get attracted.

23. In the present case, learned Revisional Court has only directed

investigation for the offence under section 3(1)(x) of SC & ST Act.

Therefore, in the present case, offence committed in public view is not

applicable. The said provision will be applicable when there is no other