Susheel Prasad Kala v. State of Uttarakhand

Smt. Sateshwari Devi and another …………Applicants Versus State of Uttarakhand and three others …………Respondents Dated: August 12, 2010 Mr. M.K. Goyal, Advocate for the applicants Mr. Amit Bhatt, Addl. GA for the State/respondent nos.1, 2 and 3 None for respondent no.4 HON. DHARAM VEER, J. Since both these applications u/s 482 Cr.P.C. have been filed by the applicants against the same charge sheet and Criminal Case No.2331 of 2005, hence, both these applications are being disposed of by this one and common order. By means of these applications, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the petitioners/applicants have sought quashing of the charge sheet as well as quashing of proceedings in Criminal Case No.2331 of 2005, State v. Kamla Dutt and others, relating to offences punishable under Sections 506 and 504 of The Indian Penal Code, 1860 (for short, IPC) and Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the Act). 2 Heard learned counsel for the parties and perused the affidavit and counter affidavit. Brief facts of the case are that respondent no.4 Sri Raghunath Lal Arya lodged a report at P.S. Raipur, District Dehradun against the applicants alleging therein that applicants abuses them and utters caste indicating words against them. After lodging of the FIR, the matter was investigated and on completion of investigation, the I.O. filed the charge sheet against the applicants in the court u/Ss 504/506 of IPC and Sect. 3(1)(x) of the Act, on the basis of which, learned Judicial Magistrate, C.B.I., Dehradun, took the cognizance of offence and summoned the applicants. Against the said charge sheet and the criminal proceedings, the applicants have preferred the application u/s 482 Cr.P.C. before this Court. Learned counsel for the applicants argued that the provisions of the Section 3(1)(x) of SC/ST Act are not attracted in this case as in the entire complaint, it was nowhere mentioned that the applicants were not the members of Scheduled Caste or a Scheduled Tribe and they intentionally insulted or intimated with intent to humiliate the respondent no.4 within public view, hence the offence punishable under Section 3(1)(x) of SC/ST Act is not made out. I find force in this argument put forth on behalf of the applicants. On a bare perusal of the complaint itself, there is no mention whatsoever that the applicants were not the members of Scheduled Caste or a Scheduled Tribe community and they intentionally insulted or intimated with intent to humiliate respondent no.4 within public view. It is settled law that when the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the applicants to face the criminal trial under Section 3(1)(x) of SC/ST Act would be totally unjustified leading to abuse of process of law. Reliance is placed upon a Hon’ble Supreme Court verdict in the case of “Gorige Pentaiah Vs. State of Andhra Pradesh & others reported in (2009) 1 SCC (Cri.) 446”. Paragraph 6 of the said judgment is reproduced as below:- “In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27.05.2004, the appellant abused 3 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” Perusal of the First Information Report lodged by respondent no.4 shows that the respondent no.4/complainant has nowhere alleged that the applicants are not the member of the Scheduled Caste of Scheduled Tribe community and they intentionally insulted or intimated with intent to humiliate respondent no.2 within public view. As such, the Court is of the view that as against the applicants, since the ingredients of the offence punishable u/s 3(1)(x) of the Act are not made out, as such the criminal trial with respect to the said offence is liable to be quashed. So far as the rest of the offences are concerned, it transpires that the same involves absolutely disputed questions of fact which cannot be decided at this stage by this Court. The trial court will decide the case after recording the evidence of the complainant as well as of the accused persons and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the First Information Report are taken at their face value and accepted in their entirety as well as on the basis of evidence collected by the I.O., I am of the view that the charge sheet is rightly submitted against the applicants u/Ss 504/506 IPC as the said offences are prima facie made out 4 against the applicants at this stage. However, the trial court will decide the case after recording the evidence adduced before it. For the reasons recorded above, both the applications u/s 482 Cr.P.C. are partly allowed with the observation that the proceedings against the applicants under Section 3(1)(x) of the SC/ST Act are quashed. However, so far as the rest of the offences are concerned, the trial court shall proceed as per law. Interim orders dated 26.6.2006 and 7.6.2006 are vacated. (Dharam Veer, J.) 12.8.2010 RG