Uttarakhand High Court
Scc 531 vs State Of A.P on 14 November, 2022
Office Notes,
reports, orders or
proceedings or
Sl. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
C482 No.2001 of 2022
Hon'ble Sharad Kumar Sharma, J.
Mr. Harshit Sanwal, Advocate, for the
applicants.
Mr. Atul Kumar Shah, D.A.G, with
Mrs. Mamta Joshi, Brief Holder, for the State
of Uttarakhand.
In the FIR being FIR No.33 of 2022,
dated 17.09.2022, was registered by the
respondent/complainant for alleged
involvement of the present applicant for the
commission of the offences, under sections 323,
504 and 506 of IPC, as well as under section 3
(1) (x) of the Schedule Caste and the Schedule
Tribes (Prevention of Atrocities) Act, 1989.
Learned counsel for the applicants has
argued the matter in the limited context relating
to the offence complaint of under section 3 (1)
(x) of the SC and ST Act, he submits that if the
narrations made in the FIR are taken into
consideration, it doesn't satisfy the parameters
which had been laid down by the Hon'ble Apex
Court in the judgment reported in 2008 (12)
SCC 531, "Gorige Pentaiah Vs. State of A.P.
and others", whereby the Hon'ble Apex Court
in paragraph no.8, has observed that for the
purposes of the allegation, which has to be
raised in relation to the commission of the
offences under section 3 (1) (x) of the SC and
ST Act, there has had to be a specific allegation
levelled that the accused who has committed an
offence belongs to a superior class in order to
bring an offence to be triable by the Sessions
Court. The relevant paragraph no.8, of the said
judgment is extracted hereunder:-
"In the instant case, the
allegation of respondent No.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 accused-
appellant was not a member of the
Scheduled Caste or a Scheduled Tribe
and he (respondent No. 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
accused-appellant was not a member
of the Scheduled Caste or a
Scheduled Tribe and he intentionally
insulted or intimidated with intent to
humiliate respondent No. 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."
In the absence of there being any specific
narration of fact that the accused person
belongs to the superior class in order to make
an offence triable by the sessions court, rest of
the offences under sections 323, 504 and 506 of
the IPC, would be triable by the Magistrate
concerned.
Looking to the FIR, and after having
scrutinized the same, this Court is of the view
that there is no such specific allegation, that the
complainant had ever referred to at any point of
time in its FIR that the named accused persons
belong to a superior class, which could be said
to be indulged in the commission of the offence
under section 3 (1) (x) of the SC and ST Act of
1989.
In that eventuality, the entire proceedings
initiated pertaining to the commission of the
offences under section 3 (1) (x) of the SC and
ST Act, would be barred by the principles laid
down by the Hon'ble Apex Court in the light of
the paragraph no.8, of the judgment of Gorige
Pentaiah (Supra).
In that eventuality, the offence under the
SC and ST Act, is not made out, and
consequently, thereafter the offences which are
left to be tried would be triable by the
Magistrate. In view of the aforesaid judgment
of the Hon'ble Apex Court, the part of the
offence under section 3 (1) (x) of the SC and
ST Act, since being dropped in the light of the
judgment of the Hon'ble Apex Court, referred
to hereinabove, the trial would be conducted by
the Magistrate concerned in relation to the
remaining offences under sections 323, 504 and
506 of IPC.
In that eventuality, where the rest of the
offences are triable by the Magistrate, it will be
open for the applicants to seek their remedy
under the judgment of the Hon'ble Apex Court
as reported in "Satender Kumar Antil Vs.
Central Bureau of Investigation and
another" as reported in 2021 (10) SCC 773,
as rest of the offences except for the offence
under the SC and ST Act, would fall for under
category A of the offences, and the bail
application of the applicants would be required
to be considered as per the parameters laid
down in sub paragraph (e) of paragraph no.3, of
the aforesaid judgment.
Subject to the aforesaid observations, and
as a consequence of dropping of the offences
under section 3 (1) (x) of the SC and ST Act,
the proceedings of the sessions trial would be
transferred by the District and Sessions Judge
to the Magistrate concerned for trying the
present applicants for the offences under
sections 323, 504 and 506 of the IPC, where it
will be left open for the applicants to take the
benefit of the judgment of "Satender Kumar
Antil Vs. Central Bureau of Investigation and
another" as reported in 2021 (10) SCC 773, and
if they do so within a period of two weeks from
the date of the transfer of the proceedings, to
the Magistrate by the concerned Sessions
Court, the same would be considered to be
decided in accordance with the paragraph no.3,
of the judgment of "Satender Kumar Antil Vs.
Central Bureau of Investigation and another" as
reported in 2021 (10) SCC 773.
Since as a consequence of the
amendment made under section 3 of the SC and
ST Act of 1989, since the offence under
sections 3 (1) (x) of the Act, had undergone an
amendment resulting into the introduction of
the offence under sections 3 (1) (r) and (s) of
the Act, to which the cognizance has been
taken, and for which the charge sheet was also
submitted, the offence complaint of in the FIR
as under section 3 (1) (x) would be read as
section 3 (1) (r) and (s), as a consequence of the
amendment made which was made in the year
2016.
Subject to the aforesaid, the C482
Application partly succeeds.
(Sharad Kumar Sharma, J.)
14.11.2022
NR/
