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Judgment
Ravindra Maithani, J
The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') is preferred for quashing the entire proceedings of criminal case no. 1655 of 2011, State vs. Kunwar Dalindrajit Singh, for the offences punishable under Sections 323, 504, 506 IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the SC/ST Act") pending in the court of Additional Judicial Magistrate, Khatima, District Udham Singh Nagar (for short "the case") as well as for quashing the charge sheet and summoning order dated 20.06.2011 passed in the case.
Respondent no.2 field an FIR on 27.12.2010 at 15:00 P.M. against the petitioner under Sections 323, 504, 506 IPC and Section 3(1)(x) of the SC/ST Act. According to the FIR, on that date when respondent no. 2 saw the petitioner ploughing the field which he had sold, he told the petitioner why he is ploughing the field, which he had already sold. At this, the petitioner used the word "chamar" and other caste coloured remarks and had committed mar peet with the respondent no.2. Respondent no.2 was all alone at that time. Hearing his shrieks, Ezaz Ahmad, Jamshed Khan and Ramkumar reached at the spot and saved him otherwise the petitioner could have killed him. He was threatened to life. Based on this FIR, investigation was carried out and a charge sheet dated 12.02.2011, under Sections 323, 504, 506 IPC and Section 3(1)(x) of the SC/ST Act was submitted against the petitioner. On 20.06.2011, cognizance was taken. Petitioner was summoned for answering the accusation and proceeding of the case was instituted. This is under challenge.
Learned counsel for the petitioner would argue that it is totally a false case. A local MLA Narayan Pal wanted to grab the agricultural land of the petitioner. Petitioner filed a Civil Suit No. 156 of 2010, in which, a temporary injunction was granted, but it was not honoured. As a counter-blast to the civil suit, the local MLA Narayan Pal used respondent no.2 to lodge the FIR against the petitioner in the matter. It is argued that no case under the SC/ST Act is made out against the petitioner because from a bare perusal of the FIR it is clear that the respondent no. 2 was all alone when the alleged incident occurred. According to learned counsel for the petitioner to attract the provisions of Section 3(1) (x) of the Act, it is necessary that the incident should occur at any place within the public view. Learned counsel for the petitioner by way of additional affidavit submitted certain additional information. It is argued on behalf of the petitioner that Narayan Pal had filed an FIR no. 209 of 2011 against the petitioner, in which, the police filed final report against the petitioner and challaned Narayan Pal for filing a false report. Therefore, it is argued that the proceeding of the case needs to be quashed.
In support of his contention, learned counsel for the petitioner placed reliance on the principles of law laid down in the case of Gorige Pentaiah vs. State of U.P., (2008) 12 SCC, in which, the Hon'ble Supreme Court, inter alia, held that:
"........................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 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 appellant-accused was not a member of the Scheduled Caste or Scheduled Tribe and the 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."
Respondent no.2 filed an affidavit stating that he has nothing to do with Narayan Pal. He has lodged a true report. Learned counsel for the respondent no.2 would submit that when petitioner started beating respondent no.2, witnesses arrived at and saved him. The witnesses have also heard the petitioner using caste coloured remarks, while abusing the respondent no.2, therefore, it is argued that case under Section 3 (1)(x) of the SC/ST Act is made out. Reference has been made to the statements of respondent no. 2 given to the investigating officer as well as statements of Ezaz Ahmad, Jamshed Khan and Ramkumar recorded under Section 161 of the Code.
Taking cognizance is not a mechanical process. It involves a person to undergo a trial. The Trial is not completed in a day or two. It's a long process. The question is whether the court is bound to summon an accused whenever the complainant has produced two witnesses in support of his case? The Magistrate is not expected to be a moot spectator while conducting the inquiry before summoning the accused.
In the case of Pepsi Foods Ltd. and another vs. Special Juducial Magistrate and others, (1998)5 SCC 749, the Hon'ble Supreme Court , inter alia, has held as under:
"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 to preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutnise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit 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."
Para 28
In the case of Ashabai Machindra Adhagale vs. State of Maharashtra and other, (2009) 2 SCC (Cri) 20, the Hon'ble Supreme Court, inter alia, held as under:
"10. It needs no reiteration that the FIR is not expected to be an encyclopedia. As rightly contended by learned counsel for the appellant whether the accused belongs to Scheduled Caste or Scheduled Tribe can be gone into when the matter is being investigated. It is to be noted that under Section 23 (1) of the Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short "the Rules") have been framed.
After ascertaining the facts during the course of investigation it is open to the investigating officer to record that the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribes. After final opinion is formed, it is open to the court to either accept the same or take cognizance. Even if the charge-sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the court that the materials do not show that the accused does not belong to Scheduled Caste or Scheduled Tribe. Even if charge is framed at the time of trial materials can be placed to show that the accused either belongs or does not belong to Scheduled Caste or Scheduled Tribe."
According to the petitioner, under the instructions of Narayan Pal, against whom, a civil suit had been filed by the petitioner, the FIR in the instant case was lodged by respondent no.2.
This is a petition under Section 482 Cr.P.C. of the Code. The scope under this provision is limited. It is exercised to do complete justice between the parties; to prevent the abuse of process of the Court or otherwise to secure the ends of justice. Guidelines have been laid down in various cases with regard to scope of the jurisdiction under Section 482 of the Code. (See R.P.Kapoor vs. State of Punjab, AIR 1960 Supreme Court 866, State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, Rajiv Thapar and others vs. Madan Lal Kapoor, (2013) 3 SCC 330 and Amit Kapoor vs. Ramesh Chander, (2012) 9 SCC 460.)
Under the proceedings of the Code meticulous examination of the case; probative or evidentiary value of the evidence; chances of conviction; reliability of the witnesses may not be tested. The factual aspects are to be left for trial. General principle is that the trial should not be stopped at the threshold, but, then to the extent of prima facie case, the matter can definitely be looked into. This Court has to exercise its jurisdiction under Section 482 of the Code, whenever occasion arises, to prevent the abuse of process of law or to secure the ends of justice.
Petitioner himself has filed copy of the FIR, statement of respondent no.2 recorded under Section 161 of the Code and the injury report. On behalf of the State, the statements of the witnesses, namely, Ezaz Ahmad, Jamshed Khan and Ramkumar Gupta have been filed. Charge sheet has been filed in the matter under Sections 323, 504, 506 IPC and Section 3(1)(x) of the SC/ST Act. The incident allegedly occurred on 27.12.2010. The provision of the 3 (1)(x) of the SC/ST Act, prevailing at the relevant time was hereunder:
"3. Punishment for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
......................
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;"
..........................."
A bare perusal of Section 3 (1) (x) of the SC/ST Act, as above, makes it clear that the provision would attract only when the incident had occurred at any place within the public view. It is an intentional insult or intimidation with intent to humiliate. According to the FIR, at the time of incident respondent no.2 was all alone. It means, it was a deserted place. There was no other person. It is the respondent no. 2 who questioned the petitioner. According to the respondent no.2, when he questioned the petitioner that he had sold the field, he was abused with caste coloured remarks and beaten up. Upon hearing his shrieks Ezaz Ahmad, Jamshed Khan and Ramkumar reached on the spot.
To the limited extent of applicability of the provision of Section 3 (1)(x) of the SC/ST Act, this matter needs to be looked into. Because in the first information report, itself respondent no.2 states that when he was abused and beaten up, he was all alone. The witnesses reached upon hearing his shrieks and cry. Three witnesses, according to respondent no.2, reached on the spot. In his statement given to the investigating officer, respondent no. 2 reiterated these facts. The witnesses Ezaz Ahmad, Jamshed Khan and Ramkumar told it to investigating officer that while returning from Kiccha, they saw a crowd and when reached nearby they witnessed the incident. They saw the petitioner beating respondent no.2 and abusing him with caste coloured remarks.
The Court is cautious that no deeper examination of the evidence should be done at this stage, but if there is some clear fact which is ignored while taking cognizance, this Court cannot close its eyes and to that extent, this Court may definitely look into the evidence. When respondent no. 2 was beaten up he was all alone. He was saved by three persons who reached on the spot upon hearing his cry. Neither in the FIR, nor in the statement given to the investigating officer, the respondent no. 2 has stated that there was a crowd. According to him, only three witnesses reached on the spot to save him. Respondent no. 2 has not stated that after the witnesses reached he was still being abused with caste coloured remarks and beaten up. Whereas, the three witnesses, namely, Ezaz Ahmad, Jamshed Khan and Ramkumar speak otherwise. This Court is of the view that prima facie, no case under Section 3 (1)(x) of the SC/ST Act is made out against the petitioner because the alleged caste coloured remarks were not made at any place within the public view. The learned court below committed an error in summoning the petitioner for the offence punishable under Section 3 (1)(x) of the SC/ST Act. Therefore, to that extent, the summoning order needs to be modified.
Offence under Section 3 (1) (x) of the SC/ST Act is not made out against the petitioner. The summoning order dated 20.06.2011 passed in the criminal case no. 1655 of 2011, State vs. Kanwar Dalindrajit Singh, pending in the Court of Additional Judicial Magistrate, Khatima, District Udham Singh Nagar is modified to that extent. For the remaining offenses, the proceedings of the case shall continue.
The petition is disposed of accordingly.