Jharkhand High Court

Arbind Kumar Singh @ Arvind Kumar ... vs The State Of Jharkhand on 25 October, 2021

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              IN THE HIGH COURT OF JHARKHAND, RANCHI
                        Cr.M.P. No. 678 of 2021
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Arbind Kumar Singh @ Arvind Kumar Singh, aged about 52 years, son of late Sunil Kumar Singh, resident of Village-Belwa Tikar, PO-Belwa Tikar, PS-Daltonganj, District-Palamau ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Sushil Kumar, aged about 55 years, son of Vishwanath Prasad, resident of Village-Hansh Niwas, near Kali Manda, PO-Old Dumka, PS-Sadar, District-Dumka ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Jitendra Shankar Singh, Advocate For the O.P.No.2 :- Mr. Manoj Tandon, Advocate For the State :- Mr. Mihir Kunal Ekka, Advocate

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7/25.10.2021 Heard Mr. Jitendra Shankar Singh, the learned counsel

appearing on behalf of the petitioner, Mr. Manoj Tandon, the learned

counsel appearing for the O.P.No.2 and Mr. Mihir Kunal Ekka, the learned

counsel appearing on behalf of the respondent State.

2. This petition has been filed for quashing the entire criminal

proceeding in connection with SC/ST Case No.03 of 2019 (arising out of

SC/ST Palamau P.S.Case No.03 of 2019) registered under sections 186,

189, 353, 504 and 506 of the Indian Penal Code and section 3(1)(x) of

SC/ST Act and for quashing the order dated 03.08.2021 whereby

cognizance under the SC/ST Act has been taken against the petitioner by

the Additional Sessions Judge-I-cum-Special Judge SC/ST Act, Palamau at

Daltonganj.

3. The O.P.No.2 has filed the complaint stating therein that-on

27.04.2018, petitioner along with 25-30 persons projecting himself as a

leader of All Jharkhand Primary Teachers Association had entered in the

office of O.P.No.2 and intimidated, insulted and abused the informant by

his caste. It is further alleged that on 16.02.2019 at about 5:00 P.M also

the accused along with 25-30 teachers/supporters has abused the

informant by his caste name in his office and has pressurized the

informant to discharge the teachers who were found guilty in the

inspection made by the informant on 15.01.2019. It is further alleged

that the petitioner alongwith his supporters had come to the rented

house of the informant and has abused him. It is further stated that the

accused Arvind Kumar Singh is under suspension since 14.10.2017 and

departmental proceeding was also pending against him.

4. Mr. Jitendra Shankar Singh, the learned counsel appearing

on behalf of the petitioner submits that no ingredient of Scheduled

Caste/ Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter

referred to as 'the Act of 1989' as alleged in the complaint is made out in

the petition. He submits that in the F.I.R, the date of occurrence is

disclosed as 27.04.2018, 16.02.2019 and 05.01.2019 and the complaint

was filed at a much belated stage on 28.02.2019. According to him, no

caste name has been alleged in the F.I.R. He further submits that as to

what kind of abuse against the petitioner has not been disclosed. There

is no explanation of delay in filing the F.I.R. He further submits that the

departmental enquiry was conducted against the informant which is

brought on record. He submits that wherein certain allegation against the

informant is required to be enquired. According to him, the petitioner,

who is a teacher and who has raised the concern of teachers for non-

payment of salary and that is why he has been falsely implicated in the

case in hand. He submits that occurrence has taken place on 16.02.2019

also and on the same day on a direction for release of the salary with

respect of the teachers has been directed to be released by the

informant. He draws the attention of the Court to Section 3(i)(s) of the

Act of 1989, He submits that in the F.I.R it has been alleged that in the

office of the informant the occurrence took place and in view of this

section occurrence has not taken place in the public view. To buttress his

argument, he relied in the case of "Gorige Pentaiah v. State of Andhra

Pradesh and Others", (2008) 12 SCC 531. Paragraph no.6 of the said

judgment is quoted hereinbelow:

"6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27-5-2004, 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."

5. He further submits that 'public view' has been considered

by the Hon'ble Supreme Court in the case of "Swaran Singh And Others

v. State Through Standing Counsel and Another", (2008) 8 SCC 435.

Paragraph no.28 of the said judgment is quoted hereinbelow:

"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."

6. He further submits that vulnerability of society is required to

be considered for proving of the ingredients in the said Act. According to

him, in view of section 3(i)(r) of the said Act, intentionally insults or

intimidates with intent to humiliate in a public view is one of the

ingredients which is absent in the case in hand. To buttress his

argument, he relied in the case of "Hitesh Verma v. State of Uttrakhand

and Anr.", (2020) 10 SCC 710. Paragraph 13 and 15 of the said judgment

are quoted hereinbelow:

"13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that Respondent 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that Respondent 2 is a member of Scheduled Caste.

15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet."

7. He further submits that in the case diary in paragraph no.6

only the interested witness, namely, Niraj Kumar Sinha has been

examined who has not disclosed all these things and in rest of the

paragraphs other witnesses have not confirmed the allegation.

8. On these grounds, he submits that no ingredient under the

said Act is made out. He further submits that the informant has not

disclosed the caste of the petitioner that he is not a member of SC/ST as

held in the case of "Gorige Pentaiah v. State of Andhra Pradesh and

Others".

9. Per contra, Mr. Manoj Tandon, the learned counsel

appearing on behalf of the O.P.No.2 submits that there is allegation in

the F.I.R dated 28.02.2019. According to him, the entire occurrence has

taken place in public view and the place of occurrence was the office of

the informant wherein 20-30 teachers have seen the occurrence. He

submits that the caste of the informant is disclosed in the complaint. He

submits that since 20-30 persons had looked the occurrence may be in

the four corners of the wall, it is in the public view. Mr. Tandon, the

learned counsel by way of referring paragraph 28 of "Swaran Singh And

Others v. State Through Standing Counsel and Another" (supra) case,

submits that even wherein it has been observed that even if the remark

is made inside a building, but some members of the public are there,

then also it would be an offence within the public view. He further

submits that not disclosing the caste of the petitioner is not a plea

and this is the subject matter of trial. According to him, this Court at this

stage may not interfere with the cognizance order. Mr. Tandon, the

learned counsel further submits that the petitioner has already moved

before this Court in Cr.Appeal (S.J.) No.434 of 2020 for bail, wherein

considering all these arguments, the bail application of the petitioner has

been rejected.

10. Mr. Mihir Kunal Ekka, the learned counsel appearing on

behalf of the respondent State submits that there is no illegality in the

impugned order and this Court may not exercise powers under section

482 Cr.P.C.

11. On perusal of the complaint dated 28.02.2019, it may be

transpired that there is allegation against the petitioner of abuse or

unparliamentary word against the informant. The allegation is also there

that 25-30 persons have seen the occurrence. In the F.I.R there is no

disclosure of caste of this informant and petitioner. The informant has

disclosed his caste himself and the caste of this petitioner has not been

disclosed. In the enquiry report brought on the record, certain allegation

made against the informant have been found to be true. So far the public

view is concerned, that has been considered by the Hon'ble Supreme

Court in the case of "Swaran Singh And Others v. State Through Standing

Counsel and Another" (supra) and in paragraph 28, it has also been held

that if the remark is made inside the building but some persons of the

public are there, then also it would be an offence within public view.

Thus, the petitioner has not made out the case on the point of public

view.

12. In the light of section 3(i)(s) of the said Act, it is the

requirement that the complaint ought to have alleged that the petitioner

was not a member of scheduled caste or scheduled tribe and he was

intentionally insulted or intimidated by the accused. This section 3(i)(s) of

the Act is not disclosed in the F.I.R. For taking out the ingredients under

section 3(i)(r) of the Act, intentional insult or intimidation of the

scheduled caste or scheduled tribe in any place within public view is

necessary. The vulnerable section of the society has been considered by

the Hon'ble Supreme Court in the case of "Hitesh Verma v. State of

Uttrakhand and Anr." (supra).

13. In view of the above discussions and particularly

considering section 3(i)(r) of the said Act, there is no disclosure of the

caste of this informant by the petitioner and of the petitioner. It must be

vulnerable section as has been held by the Hon'ble Supreme Court in the

case of "Hitesh Verma v. State of Uttrakhand and Anr." (supra). In the

light of section 3(i)(s) of the Act, there is also no allegation of caste

against the petitioner and the caste of the petitioner has not been

disclosed.

14. Since the Court has also taken cognizance under section

186, 189, 353, 504 and 506 IPC, at this stage, the Court is required to

consider as to whether those sections can survive or not, if the

cognizance under the SC/ST Act is found to be taken. Section 6 of the

said Act provides for application of certain provisions of the I.P.C. For the

sake of brevity, section 6 of the said Act is quoted hereinbelow:

"6. Application of certain provisions of the Indian Penal Code.--Subject to the other provisions of this Act, the provisions of section 34, Chapter III, Chapter IV, Chapter V, Chapter VA, section 149 and Chapter XXIII of the Indian Penal Code (45 of 1860), shall, so far as may be, apply for the purposes of this Act as they apply for the purposes of the Indian Penal Code."

15. From perusal of section 6 of the said Act, it is clear that

only those chapters of I.P.C will apply where the case is registered under

the aforesaid Act. Sections 186 and 189 IPC comes under Chapter X,

Section 353 IPC comes under Chapter XVI of the IPC and Section 504

comes under Chapter-XXII of the IPC. It has not been disclosed in the

said sections of the Act in which cognizance has been taken, thus, it is

clear that these sections will not apply where the allegation is made

under the aforesaid Act. In the case of "Hitesh Verma v. State of

Uttrakhand and Anr." (supra), also the allegation was under section 504

and 506 of the I.P.C and the Hon'ble Supreme Court considering the said

Act, coming to the conclusion of the ingredients not being made out

under the aforesaid Act, has quashed the entire proceeding.

16. A reference may be made in the case of "Inder Mohan

Goswami v. State of Uttaranchal", (2007) 12 SCC 1. Paragraphs 23 and

24 of the said judgment are quoted hereinbelow:

23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.

17. In this case, the Hon'ble Supreme Court has held that

inherent powers under section 482 Cr.P.C will be exercised for

advancement of justice. In any case the abuse of process leading to

injustice is brought to the notice of the Court, then the Court would be

fully justified in bringing justice by invoking inherent powers of the Court.

18. In view of the above facts and considering the above

discussions, the cognizance order is bad in law. No case under section

3(i)(r) or 3(i)(s) under the aforesaid Act is made out against the

petitioner. In the light of section 6 of the said Act, further sections on

which the cognizance has been taken in the cognizance order, will also

not sustain as applying chapters have already been disclosed under

section 6 of the said Act.