Bhaskar Chandra Brijwasi v. Judicial Magistrate, Haldwani & Ors.

Heard Mr. Sudhir Singh, Advocate for the petitioner and Mr. Prabhakar Joshi, Brief Holder for the State. None appeared for the respondents no. 2 and 3 despite sufficient service. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioner has prayed for quashing the proceedings of Criminal Case No. 720/2005, State v. Bhaskar Brijwasi under Section 323/504 IPC and one punishable under Section 3(1)(x) of the SC/ST Act pending before the Court of Judicial Magistrate, Haldwani. Facts, in brief, are that the respondent no. 3 Bithan lodged an FIR on 28.1.2005 with PS Haldwani alleging that on

28.1.2005 at about 12.35 pm, when he was going through the street opposite to Nagarpalika, then the petitioner and his another aged associate suddenly came across him and without saying anything, slapped him and thereafter also abused him by saying him Bhangi. He was saved by his neighbourers Gabbar and Ali when the petitioner/accused was trying to dash him from his Maruti 800 Car. On the basis of this FIR, a case was lodged against the petitioner and another co-accused and after the investigation, the I.O. filed the chargesheet against the petitioner under Section 323/504 IPC and Section 3(1)(x) of the SC/ST Act, on the basis of which learned Magistrate took the cognizance of the offence against the petitioner and summoned him vide order dated 2.3.2005. 2 Learned Counsel for the petitioner argued that the provisions of the SC/ST Act are not attracted in this case as in the FIR, it has nowhere mentioned that the petitioner/accused was not the member of Scheduled Caste or Scheduled Tribe and the petitioner/accused intentionally insulted or intimidated the respondent no. 3 with intent to humiliate him in a place within public view. Hence, the offence punishable u/s 3(1)(x) of the SC/ ST Act is not made out. I find force in the argument put forth on behalf of the petitioner inasmuch as on a bare perusal of the FIR itself reveals that there is no mention whatsoever in the said FIR that the petitioner/accused was not the member of the Scheduled Case or Scheduled Tribe community and the complainant was intentionally insulted or intimidated with intent to humiliate him 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 petitioner to face the criminal trial u/s 3(1)(x) of the SC/ST Act would be totally unjustified leading to abuse of process of law. Reliance is placed upon the judgment of the Hon’ble Apex Court delivered in the case of Gorige Pentaiah v. State of Andhra Pradesh & Others reported in (2009) 1 SCC (Cri) 446. Paragraph 6 of this verdict is very relevant and the same is reproduced as under: “In the instant case, the allegation of Respondent 3 in the entire complaint is that on

27.05.2004, 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 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 3 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 FIR lodged by the respondent no. 3 shows that the complainant has nowhere alleged that the petitioner was not a member of the Scheduled Caste or Scheduled Tribe and he intentionally insulted or intimidated the respondent no. 3 with intent to humiliate him in a place within public view. As such, the Court is of the view that since the essential and basic ingredients of the offence punishable under Section 3(1)x) of the SC/ST Act are missing in the FIR, therefore, 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 by this Court at this stage. The trial court will decide the same after recording the evidence of the complainant as well as of the accused 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 CrPC, this Court should 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 complaint are taken at their face value and accepted in their entirety, I am of the view that the petitioner has rightly been summoned by the trial court to face the trial under Section 323/504 IPC as the said offences are prima facie made out against the petitioner at this stage. However, the trial court will decide the case after recording the evidence adduced before it. 4 For the reasons recorded above, the present C482 petition is partly allowed. Proceedings against the petitioner under Section 3(1)(x) of the SC/ST Act are hereby quashed. However, proceedings under Section 323/504 IPC shall proceed against the petitioner as per law. Interim order dated 12.5.2005 stands vacated. (Dharam Veer, J.)

5.8.2010 PRABODH