HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Appeal No. 3015/2023 v. State Of Rajasthan, Through P.P Sobhagmal Meena S/o

Judgment

2. Versus State Of Rajasthan, Through P.P Sobhagmal Meena S/o Shri Surajmal Meena, Resident Of Dandotiya Ki Bari, Kotwali Baran District Baran (Raj) ----Respondents For Appellant(s) : Mr. Prem Shanker Sharma with Mr. Jitendra Kumar Sharma For Respondent(s) : Mr. Vijay Singh Yadav, PP Ms. Sudha Gupta on behalf of Mr. Rohan Jain for respondent No.2- complainant HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment Reportable 19/05/2025

1. The instant appeal is preferred by the appellant-accused Mahipal Singh aggrieved from order of charge dated 11.07.2023 in Sessions Case No.47/2019 passed by learned Special Judge, SC/ST (PoA) Act Cases, District Baran, whereby charge under Section 500 of IPC and Section 3(1)(r) of SC/ST (PoA) Act, 1989, was framed against the appellant accused.

Learned counsel for the appellant while relying upon grounds of appeal submitted that respondent No.2 who is working as Secretary in Kota Land Development Bank has lodged a criminal complaint before learned Special Judge, SC/ST (PoA) Act Cases, Baran with certain allegations and same was forwarded under [2025:RJ-JP:22935] (2 of 10) [CRLAS-3015/2023] Section 156(3) of CrPC to police. He further submitted that after a detailed investigation, police has filed a negative closure report and after protest petition, the trial Court has taken cognizance on

12.06.2019 which was challenged before this Hon’ble Court by filing separate S.B. Criminal Appeal. He further submitted that during pendency of said criminal appeal, an order of charge was passed by the trial Court and consequently, charges were framed and challenged by filing instant appeal. He submitted that a criminal appeal to challenge cognizance was withdrawn with liberty to press the grounds in the instant appeal, the appellant has right to argue the matter on all grounds available to him.

3. Learned counsel has further submitted that the basic ground, ignored by the trial Court is that in a matter relating to an offence under the SC/ST (PoA) Act, the essential ingredient of public view must be present but here in this case, the same is not present. He referred judgment of Hon’ble Supreme Court in case of Shajan Skaria Vs. The State of Kerala & Anr. : 2024 INSC 625 and submitted that the allegation made by complainant clearly indicate that the complainant has filed a complaint merely on basis of communication on mobile or WhatsApp. He also submitted that the trial Court, in its order dated 12.06.2019, clearly mentioned that all messages were transmitted on WhatsApp and were not intended to abuse any person with public view. He further submitted that a Court cannot take a cognizance unless ingredient under Section 3(1)(r) of SC/ST (PoA) Act is made out. He also submitted that the real facts narrated by police in his investigation clearly reflect that respondent-complainant is a higher official of Cooperative Land Development Bank whereas the present [2025:RJ-JP:22935] (3 of 10) [CRLAS-3015/2023] appellant is just an Accountant and Branch Secretary and working as subordinate to him. He also submitted that this appellant accused was also served a charge-sheet under the influence of respondent No.2-complainant. At last, he submitted that no case either under Section 500 of IPC and under Section 3(1)(r) of SC/ST (PoA) Act is made out from the material on record and the trial Court has committed serious error while framing the charge.

4. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for the respondent No.2- complainant.

5. Learned counsel for the respondent No.2-complainant submitted that under the influence of police, the matter was closed but after protest petition, an order of cognizance was passed as there was sufficient material on record. He also submitted that the evidence on record clearly suggested that the appellant accused has made not only false complaint but also forwarded the defamatory messages to several persons. He also submitted that defamatory messages were circulated on WhatsApp to more persons other than complainant, then it is sufficient for an offence under Section 500 of IPC and also under Section 3(1)(r) of SC/ST (PoA) Act.

6. Heard learned counsel for the parties and learned Public Prosecutor. Perused the material placed on record.

7. The brief facts of the case are that respondent No.2- complainant has filed a criminal complaint before learned Special Judge, SC/ST (PoA) Act, Kota and same was forwarded to the Police Station Kotwali, Baran under Section 156(3) of CrPC and an FIR No.807/2017 was registered on 01.12.2017. After [2025:RJ-JP:22935] (4 of 10) [CRLAS-3015/2023] investigation, the police has filed a negative closure report before the trial Court. The respondent-complainant has filed a protest petition and after protest petition, an order of cognizance was passed on 12.06.2019 and the case was registered as Sessions Case No.47/2019. Aggrieved from the order of cognizance, a SB Criminal Appeal No.608/2023 was filed before this Court and the same was dismissed as withdrawn on 23.05.2023 with liberty to raise the issues at appropriate stage.

8. In the meanwhile, the trial Court has framed charge on

11.07.2023 and the same is challenged by filing the instant criminal appeal. Learned counsel has orally argued about cognizance and charge.

9. A perusal of record clearly indicate that after registration of FIR in police station, the matter was investigated and negative closure report was filed. The fact also indicate that respondent No.2-complainant was working as the Secretary, Kota Co- operative Land Development Bank, whereas appellant is working as Branch Secretary and Accountant at Sultanpur in same Bank. This indicate that respondent No.2-complainant is superior officer of appellant accused. The allegations made by respondent No.2- complainant in his statement under Section 200 CrPC recorded on

03.01.2019 indicate that the dispute between both arisen due to official work and official position. It is also evident on record that the present appellant is a union leader and he objected to certain attempts and respondent No.2-complainant has issued a show cause notice to appellant accused for indiscipline. Overall, the dispute between both related to their official work and official position. [2025:RJ-JP:22935] (5 of 10) [CRLAS-3015/2023]

10. A perusal of complaint and statement of complainant clearly shows that there was no direct interaction which resulted into altercation or any kind of heated exchange of words. It is also evident on record that the matter pertains to circulation on WhatsApp and also filing of complaint by appellant against respondent-complainant. The order passed by trial Court clearly shows that the trial Court without assigning the reason has taken cognizance only on basis corroboration by complainant his allegation under Section 200 of CrPC. No other witness is produced by complainant to support his allegations. The order of cognizance has to be passed after proper application of mind, particularly, when police has submitted a negative report.

11. In case of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors (1998) 5 SCC 749, Hon’ble Supreme Court has laid down the duty of the Magistrate while passing summoning order in a complaint case in following manner: “Summoning of an accused in a criminal case is a serious matter- Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit [2025:RJ-JP:22935] (6 of 10) [CRLAS-3015/2023] answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

12. In case of cognizance under the SC/ST (POA) Act, it is necessary that the Court must address essential ingredient “public view” which signifies that an insult or intimidation was occurred in a place or accessible to the public. It means the incident was seen by at least one person of public and this view was laid down by Hon’ble Supreme Court in case of Hitesh Verma Vs. The State of Uttarakhand : AIR Online 2020 SC 812.

13. In case of Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr. AIR 2012 SC 1747 Hon’ble Supreme Court held that a summoning order in a complaint case need not to be a very detailed and reasoned one but there must be sufficient ground for summoning. In case of Harshendra Kumar D. Vs. Rebatilata koley 2011 Cr.L.J. 1626 (SC) it was held that the prosecution of a person in a complaint case is a serious matter and it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. Further, relying upon judgment in case of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors (supra) in subsequent case of Everest Advertising Pvt. Ltd. Vs. State Government of NCT of Delhi, AIR 1992 SC 604. Hon’ble Supreme Court has again reiterated the power of a Magistrate in passing summoning order in a complaint case.

14. The duty of Magistrate was further considered in case of Fiona Shrikhande Vs. State of Maharashtra, AIR 2014 SC

957. In case of M/S GHCL Employees Stock Option Trust Vs. M/S India Infoline Ltd., AIR 2013 SC 1433 it was held that a [2025:RJ-JP:22935] (7 of 10) [CRLAS-3015/2023] summoning order in a complaint case must reflect application of mind. In case of Nagawwa Vs. Veeranna Shivalingappa Nonjalgi, 1976 SCCr R 313 (SC) Hon’ble Supreme Court has considered the scrutiny of evidence at the stage of passing summoning order in a complaint case.

15. Now we are considering the law relating to charge and the trial Court is duty bound to consider the material available on record. Here in this case, the police has not forwarded any positive material to frame a charge, therefore, the trial Court has to apply its own mind in order to find out that ingredient of any particular office from the record. 16. The principles of law at the stage of charge were considered by Hon’ble Supreme Court in case of State of Bihar Vs. Ramesh Singh : (1977) 4 SCC 39 and Union of India Vs. Prafulla Kumar Samal & Anr. :(1979) 3 SCC 4 and were referred and relied in case of P. Vijayan Vs. State of Kerala & Anr. : (2010) 2 SCC 398. It was held that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie case whether the Court should proceed with the trial or not. The test to determine a prima facie case would depend upon the [2025:RJ-JP:22935] (8 of 10) [CRLAS-3015/2023] facts of each case and it is difficult to lay down a rule of universal application.

17. Again in case of State By Karnataka Lokayukta Police Station, Bengaluru Vs. M. R. Hiremath : (2019) 7 SCC 515, Hon’ble Supreme Court while considering several judgments on the issue in a matter relating to the Prevention of Corruption Act, 1988, has held that the trial court while dealing with an application for discharge at the stage of framing of charge must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute an offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction.

18. A similar opinion was also expressed in case of State of Rajasthan Vs. Ashok Kumar Kashyap : (2021) 11 SCC 191 and relied upon in case of Captain Manjit Singh Virdi (Retd.) vs. Hussain Mohammed Shattaf (2023 INSC 555), wherein it was held that at the stage of framing of charge and/or considering discharge application, a mini trial is not permissible. A defence on merits is not to be considered at the stage of framing of charge and / or at the stage of discharge application.

19. In case of Shajan Singh Vs. The State of Kerala & Anr. (Supra), Hon’ble Supreme Court while considering the basic [2025:RJ-JP:22935] (9 of 10) [CRLAS-3015/2023] ingredient to constitute an offence under Section 3(1)(r) of SC/ST (PoA) Act held that:- “55. The basic ingredients to constitute the offence under Section 3(1)(r) of the Act, 1989 are: a. Accused person must not be a member of the Scheduled Caste or Scheduled Tribe; b. Accused must intentionally insult or intimidate a member of a Scheduled Caste or Scheduled Tribe; c. Accused must do so with the intent to humiliate such a person; and d. Accused must do so at any place within public view”

20. After considering the judgments in case of Hitesh Verma Vs. The State of Uttarakhand (supra) and Ramesh Chandra Vaishya Vs. State of Uttar Pradesh & Anr. : 2023 SCC OnLine SC 668, Hon’ble Supreme Court has held that unless there is an intention to humiliate such a member of SC/ST for the reason that the victim belong to such caste is an offence under Section 3(1)(r) of SC/ST (PoA) Act. Every insult or intimidation would not amount to an offence under Section 3(1)(x) of SC/ST (PoA) Act, unless such insult or intimidation is targeted at the victim because he is a member of SC/ST.

21. A perusal of material on record and the law over the point clearly indicate that the trial Court without considering the essential ingredient of offence has framed a charge in a controversy relating to official business. The trial Court has also not considered the fact that the offence was committed in public view or not. The trial Court has not considered the fact that how much was the circulation on WhatsApp and when same was intended to insult to constitute an offence either under Section 500 IPC or under Section 3(1)(r) of SC/ST Act. Even not a single person was examined under Section 202 of CrPC to show that the [2025:RJ-JP:22935] (10 of 10) [CRLAS-3015/2023] accused has forwarded defamatory messages to him by text and also on WhatsApp. There is no evidence except of respondent- complainant.

22. Since there is total non application of mind by the trial Court on the material available on record, therefore, we have no option except to set aside the impugned order and remand the matter to the trial Court for fresh consideration at the stage of charge.

23. In view of discussion made hereinabove, the instant S.B. Criminal Appeal is hereby allowed and the impugned order dated

11.07.2023 is set aside. The matter is remitted back to the trial Court for fresh consideration at the stage of charge strictly in accordance with the provisions of Sections 250 and 251 of BNSS. It is expected from the trial Court to decide the charge within a period of three months from the date of receipt of a copy of this order.

24. Misc. application, if any, stands disposed of. MR/129 (ASHOK KUMAR JAIN),J