Jharkhand High Court
Puja Pandey vs The State Of Jharkhand on 8 September, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 58 of 2019
Puja Pandey ...... Petitioner
Versus
1. The State of Jharkhand
2. Arvind Upadhyay
3. Aswani Uphadyay
4. Vishal Kumar ....... Opp. Parties
---------
CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
----------
For the Petitioner : Mr. Mukesh Kumar, Advocate
For the State : Mr. Shailesh Kumar Sinha, APP
---------
08/Dated:08th September, 2023
I.A. No.2549 of 2020
Heard Mr. Mukesh Kumar, learned counsel for the petitioner and
Mr. Shailesh Kumar Sinha, learned APP for the State.
2. I.A. No.2549 of 2020 has been filed on behalf of the petitioner
under section 5 of the Limitation Act for condoning delay of 11 days in
filing the instant Criminal Revision.
3. Having heard the parties and considering the averments made in
paragraph nos.4 to 8 the delay of 11 days in filing the instant Criminal
Revision is condoned.
4. Thus, I.A. No.2549 of 2020 is allowed and stands disposed of.
Cr. Revision No. 58 of 2019
5. This Criminal Revision No.58 of 2019 has been filed on behalf
of the petitioner by challenging the order dated 03.10.2018 passed in
C.P. No.477 of 2018 by the learned Special Judge-1, Bokaro by
which learned Special Judge for not taking the cognizance under
sections 376/511 of the IPC and under appropriate sections of the
SC/ST (Prevention of Atrocities) Act, 1989.
6. Learned counsel for the petitioner has submitted that while
passing the impugned order, the learned Court below has not taken
cognizance under sections 376/511 of the IPC and under appropriate
sections of the SC/ST (Prevention of Atrocities) Act, 1989 against the
O.P. Nos.2 to 4. It is submitted that the complainant during her
solemn affirmation and Enquiry Witness No.1 i.e. Suman Munda
have categorically stated that Suman Munda was abused in the name
of her caste but the learned Court below has made grave illegality by
not taking cognizance under appropriate provisions of the SC/ST
(Prevention of Atrocities) Act, 1989. It has further been submitted
that on solemn affirmation of the complainant and the statement of
the witness namely Suman Munda, it is clear that the O.P. No.2 to 4
had tried to commit rape upon the complainant and the court below
ought to have taken cognizance under sections 376/511 of the IPC
and under appropriate sections of the SC/ST (Prevention of
Atrocities) Act, 1989 against the O.P. Nos.2 to 4 but the Court below
has taken cognizance only under sections 323, 504, 506 and 354A of
the Indian Penal Code against the O.P. Nos.2 to 4.
7. It has further been submitted that the judgment cited by the
learned Court below in the case of Kartik Ram vs. State of Madhya
Pradesh (Now State of Cg.,) reported in 2015 Cr.L.J 2958 (Cg.) is
not applicable in the facts and circumstances of this case and the
petitioner was not required to produce the Caste Certificate of E.W
No.1 Suman Munda from the authorized signatory for the purpose of
taking cognizance under relevant sections of SC/ST (Prevention of
Atrocities) Act. Hence, the Court below may be directed to take
cognizance under the relevant provisions of the SC/ST (Prevention of
Atrocities) Act, 1989 and also under sections 376/511 of the IPC
against the O.P. No.2 to 4 and this Criminal Revision Application
may be allowed.
8. On the other hand, learned APP has opposed and submitted that
this Criminal Revision Application is devoid of merit and submitted
that no illegality has been committed by the learned Court below by
passing the impugned order. It is submitted that it was a case of
previous dispute between the parties and after conviction of the
husband of the complainant-petitioner under section 304 B of the IPC
the present complaint was filed and after institution of F.I.R, the
protest petition was filed and as such the learned court below has
rightly taken cognizance under sections 323, 504, 506 and 354A of
the Indian Penal Code and there is no illegality in the impugned order
and hence the instant Criminal Revision Application may be
dismissed.
9. Perused the records of this case and considered the submissions
made on behalf of both the sides.
10. It appears from the report sent by Smt. Lucy Sosen Tigga, the
learned A.C.J.M., Bokaro vide letter no.439 dated 03.08.2023 that
one of the person namely Abhay Kumar Upadhyay (earlier named as
O.P. No.5) has died and his name was already deleted vide order
dated 08.08.2023 by this Court.
11. It further transpires from the record that initially the petitioner
had lodged F.I.R bearing B.S. City Case No.176 of 2014 against
original O.P. Nos.2 to 5 in which police had made them parties,
however, later on the police had submitted FRT (i.e. Final Report) in
favour of O.P. No.2 to 4 and said Abhay Kumar Upadhyay. Later on,
the petitioner has filed protest petition and thereafter the complainant
was examined on solemn affirmation and five Enquiry Witnesses
were examined under section 202 Cr.P.C.
However, learned counsel for the petitioner has only enclosed
the solemn affirmation of the complainant and the statement of one
Suman Munda- Enquiry Witness No.1 recorded under section 202
Cr.P.C.
12. From perusal of the Protest Petition, it would appear that there
is no averment against any of the Opposite Party nos.2 to 4 for
abusing the witness Suman Munda in the name of her caste in public
view. However, during her solemn affirmation and statement of
Enquiry Witness-Suman Munda, there is allegation of abusing her i.e.
Suman Munda in the name of her caste inside the house of
complainant for the first time.
13. It is well settled from the judgment of the Hon'ble Supreme
Court in the case of Ramesh Chandra Vaishya vs. State of Uttar
Pradesh and Another reported in 2023 SCC OnLine SC 668 that the
occurrence of abuse had taken place inside the house and not in the
public view then the provisions of the SC/ST (POA) Act is not
attracted.
14. It has been held in the case of Hitesh Verma vs. State of
Uttarakhand and Anr. reported in (2020) 10 SCC 710 at paragraphs-
14 and 15 as follows:-
"Para-14:- Another key ingredient of the provision is insult or
intimidation in "any place within public view". What is to be
regarded as "place in public view" had come up for
consideration before this Court in the judgment reported
as Swaran Singh v. State [Swaran Singh v. State, (2008) 8
SCC 435 : (2008) 3 SCC (Cri) 527] . The Court had drawn
distinction between the expression "public place" and "in any
place within public view". It was held that if an 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, then the lawn would certainly be a
place within the public view. On the contrary, if the remark is
made inside a building, but some members of the public are
there (not merely relatives or friends) then it would not be an
offence since it is not in the public view (sic) [Ed. : This
sentence appears to be contrary to what is stated below in the
extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e,
and in the application of this principle in para 15,
below:"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."] . The Court held as under : (SCC pp. 443-44,
para 28)
"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."
(emphasis in original)
Para-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 [Swaran Singh v. State,
(2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] , 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.
15. It has been held in the case of Ramesh Chandra Vaishya vs.
State of Uttar Pradesh and Another reported in 2023 SCC OnLine
SC 668 at paragraph- 17 as follows:-
"Para-17:- The first question that calls for an answer is
whether it was at a place within public view that the appellant
hurled caste related abuses at the complainant with an intent
to insult or intimidate with an intent to humiliate him. From
the charge-sheet dated 21st January, 2016 filed by the I.O., it
appears that the prosecution would seek to rely on the
evidence of three witnesses to drive home the charge against
the appellant of committing offences under
sections 323 and 504, IPC and 3(1)(x), SC/ST Act. These three
witnesses are none other than the complainant, his wife and
their son. Neither the first F.I.R. nor the charge-sheet refers to
the presence of a fifth individual (a member of the public) at
the place of occurrence (apart from the appellant, the
complainant, his wife and their son). Since the utterances, if
any, made by the appellant were not "in any place within
public view", the basic ingredient for attracting section
3(1)(x) of the SC/ST Act was missing/absent. We, therefore,
hold that at the relevant point of time of the incident (of
hurling of caste related abuse at the complainant by the
appellant), no member of the public was present."
16. It transpires from the Protest Petition that the accused persons
had outraged the modesty of the complainant and tried to commit
rape by entering into inside the house of the complainant-petitioner.
17. It appears that the complainant is not a member of the SC/ST
Act rather the Enquiry Witness no.1 is the member of the SC/ST Act.
18. It also transpires from the record that the husband of the
complainant was convicted for the offence under section 304B of the
IPC instituted on behalf of the O.P. Nos.2 to 4 and hence the
complaint appears to be instituted by the petitioner in retaliation.
19. It appears that the Court below has taken cognizance under
sections 323, 504, 506 and 354A of the Indian Penal Code. The
discussion précised by the learned Court below and which needs not
to be interfered at this stage and the learned Court below has taken
cognizance in the light of the statement of the solemn affirmation and
the statement of the Enquiry Witnesses examined under section 202
Cr.P.C.
20. Thus, this Court is not inclined to interfere in the order dated
03.10.2018 passed in C.P. No.477 of 2018 by the learned Court
below.
21. Accordingly, this Court finds no merit in this Criminal Revision
Application and thus, Cr. Revision No.58 of 2019 is hereby
dismissed.
(Sanjay Prasad, J.)
Saket/
N.A.F.R.
