C482/1931/2021
2023 Latest Caselaw 2099 UK

                Office Notes,
             reports, orders or
SL.           proceedings or
      Date                                        COURT'S OR JUDGES'S ORDERS
No             directions and
             Registrar's order
              with Signatures
                                  C-482 No. 1931 of 2021
                                  Hon'ble Sharad Kumar Sharma, J.

Mr. Avidit Noliyal, Advocate, for the applicants.

Mr. V.K. Gemini, Deputy A.G., for the State of Uttarakhand.

Mr. Dheeraj Joshi, Advocate, on behalf of Mr. Abhishek Verma, Advocate, for respondent No.1.

The Coordinate Bench by an order dated 18th February, 2022, has noticed respondent No.2. Respondent No.2/complainant, had put in appearance and has filed his authority on 23rd February, 2022, but he has not filed the counter affidavit, and despite of the question being raised by the learned counsel for the applicants, as to whether, he intends to file any counter affidavit, the said opportunity given by the Court was denied to be accepted by the counsel and rather the counsel has chosen to address the C-482 Application on merits even without the counter affidavit. But that in itself, will not mean, that he would be deprived to argue the C-482 Application on merits.

But there is yet another logical reason, which has to be considered, that according to the Supreme Court judgment as reported in AIR 1993 2 SCC 259, in absence of counter affidavit, it will be deemed that the pleadings raised in the C-482 Application, in the absence of there being any counter affidavit being filed by the respondent, would be treated to be uncontroverted.

The genesis of the dispute as it emanated from the FIR No. 84 dated 5th June, 2021, which was registered by the respondent No.2, herein, at Police Station Kelakhera, District Udham Singh Nagar, for the alleged involvement of the named accused persons therein, i.e., the present applicants for the commission of offence under Sections 3 (1) (da) and 3 (1) (dha) of the SC & ST Act, and Section 504 of the IPC.

Primarily, the allegations levelled in the FIR was, that on the date of the occurrence, i.e. 4th June, 2021, when the applicants were on their main gate of the Institution, called as Vidya Jyoti Educational Society, Bichpuri, Bazpur, and they while in the process of installation of the CCTV camera, the respondent has opposed the same, and while doing so, the complainant has contended, that the applicants have used derogatory remarks, qua their castes and has rather criminally intimidated them for commission of the offence, as it has been complained of in the FIR.

The matter was investigated upon, and thereafter, the chargesheet has been submitted by the Investigating Officer, being the Chargesheet No.1 dated 19th June, 2021, based upon which, the proceedings of Special Sessions Trial No. 428 of 2021, State Vs. Paramjeet Kaur and others, stood instituted, as a consequence of which, the summoning order dated 23rd September, 2021, was issued.

The learned counsel for the respondent, in the absence of there being any counter affidavit filed by them, denying the pleadings as raised in the C-482 Application, had contended, that the place of occurrence, as it has been complained of and finds reference in the FIR, whether it will be falling to be a public place within public view or not. He contends that the said exception has to be carved out in the light of para 14 of the judgment of Hitesh Verma Vs. State of Uttarakhand and another, as reported in (2020) 10 SCC 710, where the basic ingredients for the provisions of insult or intimidation as provided under Section 3 of the Act has had to be in any place within the public view.

The learned counsel for the respondents submitted, that the place of occurrence, where the incident is said to have been chanced, it would amount to be public place, where some derogatory remarks were said to have been levelled by the present applicants, as against the complainant/respondents No.2. But, however, the distinction as it has been carved out with regard to para 14 in relation to the implications of "place in public view", and the element required to be satisfied under Section 3 of the SC & ST Act, that would be irrelevant and it is not in debate that the case where the incident has chanced, as it has been complained of on 4th June, 2021, since being outside the main gate of the Institution, it would be deemed to be a public place.

For the purposes of commission of the offence under Section 3 of the SC & ST Act, it is not exclusively the public place, which would be playing an important role to establish about the set of allegations levelled as against the accused person, because to bring an offence under Section 3 of the SC & ST Act, the Hon'ble Apex Court has specifically laid down, that the complainant will have to come with a specific case, that the accused persons, they belong to a superior caste, who were alleged to be responsible for using the derogatory caste related remarks to bring the offence under Section 3 of the SC & ST Act, as it has been observed by the Hon'ble Apex Court in a judgment reported in 2008 (12) SCC 531, Gorige Pentaiah Vs. State of Andhra Pradesh and others. Para 6 of which 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."

If para 6 is taken into consideration, since it was not a complainant's case, that the present applicants belonged to a superior class and they have used a derogatory remark. The offence under Section 3 cannot be said to be made out against the present applicants for the reasons aforesaid.

On that limited count itself, though while accepting the argument as extended by the learned counsel for the respondents, that the place of occurrence was within the public view, since being a public place in front of educational institution, there might have chanced the incident of 4th June, 2021, where the allegation pertaining to the derogatory caste related remarks are said to have been caused by the present applicants, but in the absence of satisfying the conditions provided in para 6 of the judgment of Gorige Pentaiah (Supra), it cannot be said that the present applicants were involved in the commission of offence under Section 3 of the SC & ST Act, particularly, in the light of the fact, that when the complainant /respondent No.2, had not denied the averments made in C-482 Application, qua the allegations levelled against them by the complainant/ respondent No.2.

In that eventuality, since the principle set of allegations and the ground, which has been taken by the applicants to put the challenge to the proceedings of Sessions Trial No. 428 of 2021, State Vs. Paramjeet Kaur, has not been subject to challenge on merits, the C-482 Application would stand allowed simplicitor on the ground, that in the absence of there being any specific allegation levelled in relation to para 6 of the judgment of Gorige Pentaiah (Supra), no offence under Section 3 of the SC & ST Act, could be made out against the present applicants.

Consequently, the act of criminal intimidation too, as referred to in the FIR, for which the cognizance has been taken, it would too, not be made out once the basic elements of making caste related expression has not been able to established as per the principle of the Hon'ble Apex Court.

Owing to the aforesaid, the C-482 Application would stand allowed, and as a consequence thereto, the proceeding of Sessions Trial No. 428 of 2021, State Vs. Paramjeet Kaur and others, pending consideration before the Court of Special Sessions Judge, Udham Singh Nagar, would hereby stand quashed.

(Sharad Kumar Sharma, J.) Dated 07.08.2023 Shiv